Federal Register / Vol. 73, No.
54 / Wednesday, March 19, 2008 / Rules and Regulations
Issued in Washington, DC, on March 7,
2008.
James J. Ballough,
Director, Flight Standards Service.
Adoption of the Amendment
■ Accordingly, pursuant to the authority
delegated to me, under Title 14, Code of
Federal Regulations, part 97 (14 CFR
part 97) is amended by establishing,
amending, suspending, or revoking
Standard Instrument Approach
Procedures and/or Takeoff Minimums
and/or Obstacle Departure Procedures
effective at 0901 UTC on the dates
specified, as follows:
PART 97—STANDARD INSTRUMENT
APPROACH PROCEDURES
■ 1. The authority citation for part 97
continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40106,
40113, 40114, 40120, 44502, 44514, 44701,
44719, 44721–44722.
■ 2. Part 97 is amended to read as
follows:
Effective 10 Apr 2008
Blytheville, AR, Arkansas Intl, RNAV (GPS)
RWY 18, Amdt 1.
Blytheville, AR, Arkansas Intl, RNAV (GPS)
RWY 36, Amdt 1.
Blytheville, AR, Arkansas Intl, Takeoff
Minimums and Obstacle DP, Orig.
Chicago, IL, Chicago Midway Intl, Takeoff
Minimums and Obstacle DP, Amdt 10.
Wichita, KS, Wichita Mid-Continent, Takeoff
Minimums and Obstacle DP, Orig.
Coldwater, MI, Branch County Memorial,
RNAV (GPS) RWY 7, Amdt 1.
Coldwater, MI, Branch County Memorial,
RNAV (GPS) RWY 25, Orig.
Coldwater, MI, Branch County Memorial,
VOR RWY 7, Amdt 5.
Coldwater, MI, Branch County Memorial,
VOR/DME RWY 25, Orig.
Coldwater, MI, Branch County Memorial,
VOR RWY 25, Orig-A, CANCELLED.
Coldwater, MI, Branch County Memorial,
Takeoff Minimums and Obstacle DP, Amdt
4.
Jackson, MN, Jackson Muni, NDB RWY 13,
Amdt 10.
Higginsville, MO, Higginsville Industrial
Muni, RNAV (GPS) RWY 16, Amdt 1.
Higginsville, MO, Higginsville Industrial
Muni, RNAV (GPS) RWY 34, Amdt 1.
Tulsa, OK, Tulsa Intl, VOR OR TACAN RWY
26, Amdt 23.
Antigo, WI, Langlade County, RNAV (GPS)
RWY 16, Amdt 1.
Antigo, WI, Langlade County, RNAV (GPS)
RWY 34, Amdt 1.
Antigo, WI, Langlade County, NDB RWY 16,
Amdt 6.
Antigo, WI, Langlade County, Takeoff
Minimums and Obstacle DP, Orig.
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Milton, WV, Ona Airpark, Takeoff Minimums
and Obstacle DP, Amdt 2.
Effective 05 Jun 2008
Meeker, CO, Meeker, Takeoff Minimums and
Obstacle DP, Amdt 1.
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14687
Telluride, CO, Telluride Rgnl, Takeoff
Minimums and Obstacle DP, Amdt 1.
Bartow, FL, Bartow Muni, Takeoff Minimums
and Obstacle DP, Orig.
Bozeman, MT, Gallatin Field, NDB RWY 12,
Amdt 5, CANCELLED.
Redmond, OR, Roberts Field, NDB OR GPS
RWY 22, Amdt 1A, CANCELLED.
Ephrata, WA, Ephrata Muni, Takeoff
Minimums and Obstacle DP, Amdt 2.
On February 25, 2008 (73 FR 9935), the
FAA published an Amendment in Docket No.
30593, Amdt No. 3256 to Part 97 of the
Federal Aviation Regulations under section
97.33, effective April 10, 2008, which is
hereby rescinded:
Lanai City, HI, Lanai, ILS OR LOC RWY 3,
Orig-A.
On February 25, 2008 (73 FR 9935), the
FAA published Amendments in Docket No.
30593, Amdt No. 3256 to Part 97 of the
Federal Aviation Regulations under section
97.33, effective April 10, 2008, which are
hereby corrected to be effective March 13,
2008:
Bishop, CA, Eastern Sierra Rgnl, RNAV (GPS)
Y RWY 12, Orig.
Bishop, CA, Eastern Sierra Rgnl, RNAV (GPS)
Z RWY 12, Orig.
On February 25, 2008 (73 FR 9935), the
FAA published an Amendment in Docket No.
30593, Amdt No. 3256 to Part 97 of the
Federal Aviation Regulations under section
97.33, effective April 10, 2008, which are
hereby corrected to be effective July 31, 2008:
Woodward, OK, West Woodward, NDB RWY
17, Amdt 3, CANCELLED.
[FR Doc. E8–5172 Filed 3–18–08; 8:45 am]
BILLING CODE 4910–13–P
COMMERCE DEPARTMENT
Industry and Security Bureau
15 CFR Part 738
Commerce Control List Overview and
the Country Chart
CFR Correction
In Title 15 of the Code of Federal
Regulations, Parts 300 to 799, revised as
of January 1, 2008, in part 738, in
Supplement No. 1, on page 244, an ‘‘X’’
is added in the entry for Tonga under
the heading CC3.
[FR Doc. 08–55506 Filed 3–18–08; 8:45 am]
BILLING CODE 1505–01–D
PEACE CORPS
22 CFR Part 310
Governmentwide Debarment and
Suspension (Nonprocurement)
CFR Correction
In Title 22 of the Code of Federal
Regulations, Parts 300 to 1799, revised
PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
as of April 1, 2007, on page 49, the
appendix to Part 310 is removed.
[FR Doc. 08–55503 Filed 3–18–08; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
Income Taxes
CFR Correction
In Title 26 of the Code of Federal
Regulations, Part 1 (§ 1.1551 to End),
revised as of April 1, 2007, on page 439,
in § 1.6654–2, in the undesignated
paragraph following paragraph
(d)(2)(ii)(B), make the following
changes:
1. In the first sentence, after the word
‘‘attributable’’, insert the words ‘‘to
months in such partnership taxable’’;
and
2. At the beginning of the third
sentence, remove the words ‘‘In
addition, a partner shall include in his
taxing after December’’ and add the
words ‘‘In addition, a partner shall
include in his taxable income and, for
taxable years beginning after December’’
in their place.
[FR Doc. 08–55505 Filed 3–18–08; 8:45 am]
BILLING CODE 1505–01–D
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R09–OAR–2006–0583, FRL–8542–6]
Approval and Promulgation of
Implementation Plans; Designation of
Areas for Air Quality Planning
Purposes; State of California; PM–10;
Affirmation of Determination of
Attainment for the San Joaquin Valley
Nonattainment Area
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is finalizing its proposal
to affirm its October 30, 2006,
determination that the San Joaquin
Valley nonattainment area (SJV or the
Valley) in California has attained the
National Ambient Air Quality Standard
(NAAQS) for particulate matter with an
aerodynamic diameter less than or equal
to a nominal 10 micrometers (PM–10).
EPA proposed to affirm the
determination of attainment in order to
take comment on the exclusion from a
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 14688 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
determination of attainment of PM–10
exceedances that were caused by
exceptional events. EPA is concurring
with the State’s request to flag
exceedances which occurred in the SJV
as being caused by exceptional events,
i.e., high winds. EPA is also concurring
with the Santa Rosa Rancheria Tribe’s
request to flag, as due to an exceptional
event, PM–10 exceedances which
occurred on tribal lands located within
the boundaries of the SJV. EPA is
further finding that these exceedances at
the Santa Rosa Rancheria (SRR) should
be excluded from use in determining
attainment because the exceedances
occurred while the monitor was
operating in very close proximity to
construction activities and, as such, the
monitor was not properly sited during
that time for purposes of comparison to
the NAAQS. As a result, EPA is
affirming its determination that the SJV
has attained the PM–10 standard based
on EPA’s evaluation of quality-assured
data through 2006.
In addition, EPA did not receive
comments on how the Agency
addressed the issues raised in petitions
for reconsideration and withdrawal of
EPA’s 2006 determination of attainment,
filed by Earthjustice on behalf of the
Sierra Club, Latino Issues Forum and
others, and thus we are denying the
petitions.
DATES: Effective Date: This rule is
effective on April 18, 2008.
ADDRESSES: EPA has established docket
number EPA–R09–OAR–2006–0583 for
this action. The index to the docket is
available electronically at
www.regulations.gov and in hard copy
at EPA Region IX, 75 Hawthorne Street,
San Francisco, California. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Doris Lo, EPA Region IX, (415) 972–
3959, lo.doris@epa.gov or Bob Pallarino,
EPA Region IX, (415) 947–4128,
pallarino.bob@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
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Table of Contents
I. Summary of Proposed Action
II. Public Comments and EPA Responses
A. Earthjustice Comments
1. Overview Comments
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2. Comments Specific to September 22,
2006—Corcoran, Bakersfield and Oildale
3. Comments Specific to October 25,
2006—Corcoran and Bakersfield
B. Other Comments
C. List of EPA Figures in the Docket
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On August 27, 2007, EPA proposed to
affirm its determination that the SJV has
attained the 24-hour NAAQS for PM–10.
72 FR 49046.1 EPA issued this proposed
rule in order to take comment on the
exclusion of several PM–10 exceedances
that were caused by exceptional events,
and, in the case of the SRR, improper
siting of the monitor for purposes of
comparison to the NAAQS. These
exceedances are summarized in Table 1
in the proposed rule. Id. at 49047. For
a more detailed discussion of the related
background for the SJV and of the
proposal, please refer to the proposed
rule.
II. Public Comments and EPA
Responses
EPA received three comment letters
supporting the proposal to affirm the
attainment determination. These
comments were submitted by the
California Cotton Ginners and Growers
Association, the Tulare County Farm
Bureau and the Western United
Dairymen. In general, these commenters
support the cases that are made for the
exceptional event exceedances and
discuss the many control measures and
efforts that have been made to achieve
attainment. The commenters also point
to the SJV’s continued efforts to achieve
further air quality improvements under
the PM–2.5 plan development. One
commenter provides information to
show that no cotton harvesting was
occurring in September 2006. Finally,
the commenters question the
representativeness of the 2000 comment
letters received by EPA in response to
our July 19, 2006, attainment
determination proposal (71 FR 40952)
since the majority of the commenters
appear to reside outside the SJV.
EPA received three adverse comment
letters. Two were from private citizens
from the state of Tennessee and one was
from Earthjustice, representing Sierra
Club, Latino Issues Forum, Medical
Advocates for Healthy Air, the Steven
and Michele Kirsch Foundation, Tri-
Valley CAREs, Concerned Residents of
Lockwood Valley, Fresno Coalition
Against the Misuse of Pesticides,
1 On October 17, 2006, EPA finalized its
determination that the SJV attained the NAAQS for
PM–10 and on October 30, 2006, EPA published
this determination in the Federal Register. 71 FR
63642.
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California Communities Against Toxics,
Fresno Metro Ministry, Coalition for
Clean Air, Center for Biological
Diversity, and the Association of
Irritated Residents.2 The majority of the
comments discussed below are raised by
Earthjustice.
EPA notes that although it received
numerous specific comments on the
September 22, 2006, October 25, 2006,
and the SRR exceedances, no adverse
comments are directed specifically at
EPA’s finding that exceedances
monitored on December 8, 2006, at
Corcoran and Bakersfield-Golden State
Highway (Bakersfield) were caused by
an exceptional high wind event. Thus,
EPA does not address any substantive
issues regarding these exceedances in its
responses to comments.
In subsection A. below we respond to
the extensive comments raised by
Earthjustice. In subsection B. we
respond to comments raised by other
parties.
A. Earthjustice Comments
1. Overview Comments
Comment 1: Earthjustice explains that
its comments analyze EPA’s proposed
affirmation rule under the new
Exceptional Events Rule (EER). 72 FR
13560 (March 22, 2007). In this regard,
Earthjustice states that, ‘‘assuming EPA
has the discretion to apply the new
rule,’’ EPA’s decision to do so is
completely arbitrary given that the San
Joaquin Valley Air Pollution Control
District (District or SJVAPCD) prepared
its analyses under EPA’s prior policies
and did not invoke the new regulatory
requirements.
Response 1: EPA addressed the issue
of the applicability of the new EER to
the events at issue in this rulemaking in
its proposed affirmation rule. EPA
explained that the statutory provision
upon which the new rule is based, CAA
section 319, as amended by section 6013
of the Safe Accountable Flexible
Efficient-Transportation Equity Act: A
Legacy for Users (SAFE–TEA–LU) of
2005, provides that the Agency’s pre-
existing guidance documents continue
to apply until the effective date of the
rule. CAA section 319(b)(4). As
mandated by section 319, EPA finalized
and published the final EER in March
2007. This rule became effective on May
21, 2007, requiring EPA to follow the
rule in making exceptional events
determinations after that date.
2 The proposal provided a 30 day comment
period ending on September 26, 2007. EPA received
a request for an additional 30 days to comment and
granted that request extending the comment period
until October 26, 2007. 72 FR 53743 (September 20,
2007).
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Therefore, in making and publishing its
determination after the effective date of
the EER, EPA followed its procedures
and criteria in evaluating the State’s
exceptional events demonstrations. 72
FR at 49048.
Although EPA followed the EER in
this particular instance, and believes it
should be followed in most cases, the
Agency recognized that there might be
certain instances where EPA had not yet
made a decision on a state’s already
completed and submitted demonstration
of an exceptional event and these
demonstrations were thus caught
midstream. In those instances, EPA
concluded that a state could choose for
a limited period to comply with either
the provisions of the rule or those of the
Agency’s existing policies and, that if
asked, EPA would act under the policy
on a grandfathering rationale for a short
time period. EPA continues to believe
that this transitional policy was
reasonable in the absence of an explicit
statutory directive addressing that
situation. Here, the State did not
indicate that its submissions should be
evaluated under the existing policies.
Therefore, EPA applied the rule, which
was already effective, when it made its
determinations on the exceptional
events in the SJV.
Comment 2: Earthjustice, citing case
law, states that EPA must provide a
rational basis to support its conclusions
regarding the exclusion of monitoring
data showing NAAQS exceedances and
that its decisions must have a
‘‘substantial basis in facts.’’ Earthjustice
cites 40 CFR 50.14(c)(3)(iii) and CAA
section 319(b)(3)(B), respectively, for the
propositions that for EPA’s
determination here the District must
provide actual evidence to support its
claims and that the occurrence of an
exceptional event must be
‘‘demonstrated by reliable, accurate
data.’’ Earthjustice claims that even
under a weight of evidence standard
there must be evidence supporting the
specific findings and that reliance on a
plausible story is not enough.
Response 2: EPA agrees with
Earthjustice’s characterization of the
general demonstration, as stated in our
summary of its comment above, that
must be made in order to exclude data
showing NAAQS exceedances. EPA
believes that it has, both in the proposed
affirmation rule and this final rule,
provided a rational basis supported by
reliable, accurate data for its
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conclusions that the September, October
and December 2006 PM–10 exceedances
in the SJV were caused by exceptional
events. See 72 FR at 59050–49063 and
our responses to comments below.
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Comment 3: Regarding its contention
concerning the lack of reliable and
accurate data, Earthjustice cites EPA’s
statements in the proposed affirmation
rule at 72 FR at 49053 that activity
levels on September 22, 2006 were
‘‘constant’’ and that reasonable controls
were in place to control particulate
matter while providing only general or
anecdotal evidence in the form of non-
specific District inspector observations
and ‘‘discussions with representatives of
agricultural and industrial operations.’’
Citing CAA section 319(b)(3)(B),
Earthjustice claims that this does not
satisfy the statutory requirement that
‘‘exceptionality’’ be based on reliable,
accurate data.
Response 3: In the section of the
proposed affirmation rule cited by
Earthjustice we discussed our
conclusion that the State’s
documentation demonstrates that the
exceedances at Corcoran, Bakersfield
and Oildale on September 22, 2006
would not have occurred but for the
wind event on this day. EPA based this
conclusion on the totality of the
evidence presented by the State which
included, but was not limited to, the
information on activity levels and
control measures singled out by
Earthjustice. For the additional factors
EPA considered in reaching its
conclusion, see section V.A.2.d. in our
proposed affirmation rule (72 FR at
49053) and our responses to comments
below.
Comment 4: Earthjustice claims that
EPA offers no evidence to support the
construction claims regarding the SRR.
It asserts that EPA cannot say what if
anything was occurring on the days in
question, where it was occurring, or
why it could not be reasonably
controlled. Earthjustice also maintains
that EPA cannot show that construction
activity at the SRR is related to the
measured exceedances and, as a result,
EPA cannot show the required ‘‘clear
causal relationship.’’ Further, EPA
cannot say when these events occurred
and why these allegedly ongoing
activities only resulted in exceedances
during the same period that monitors in
other areas of the SJV started monitoring
exceedances. Earthjustice argues that
EPA cannot make the required ‘‘but for’’
showing at the SRR because EPA cannot
show that there was an event in the first
place. Earthjustice further contends that
EPA did not provide adequate evidence,
including written accounts, that the
construction activity took place on the
days the exceedances occurred.
Earthjustice claims that ‘‘no one was
able to produce any written account, in
the form of contractor records, work
orders, schedules, or anything else that
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14689
would confirm that construction activity
did, in fact, take place on the days in
question.’’ Finally, Earthjustice states
that ‘‘mere post hoc speculation and
anecdotal accounts of what probably
happened does not establish a basis for
waiving these data.’’
Response 4: First, Earthjustice notes
that EPA proposed to exclude the SRR
violations on two grounds: (1) The
monitor was not properly sited, and (2)
the nearby construction activity was an
exceptional event. Earthjustice concedes
that ‘‘[b]oth of these conclusions seem
reasonable if the activity can be shown
to have occurred on the days the
monitor recorded violations.’’
Earthjustice Comments (EC) at 23.3
Earthjustice contends, however, that
EPA did not provide ‘‘any such
evidence.’’
Contrary to Earthjustice’s assertion,
EPA in its proposed affirmation rule
provided a demonstration that
construction activity, involving the
grading and paving of parking lots, took
place in close proximity to the SRR
monitor during the period the
exceedances at the SRR monitor
occurred, and that this activity caused
the exceedances. EPA in its proposal set
forth information derived from
eyewitness accounts, meteorological
data, contemporaneous tracking reports,
and an account of an EPA expert’s own
visit to the site. 72 FR at 49060–49063.
EPA did include written documentation
of the events at issue. This written
documentation included sample
tracking reports that accompanied the
filters from the monitors and described
the conditions at the time of the
monitoring, and an EPA expert’s report
of his site visit and interviews of
witnesses to the events. There is no
requirement in the EER that
documentation of events include
specific types of written documentation,
such as those cited by Earthjustice.4 Nor
3 Earthjustice concedes, moreover, that under the
EER the requirements for tribal governments appear
to be ‘‘much more flexible * * * ’’ and ‘‘[i]t would
not take much to make these demonstrations.’’ EC
at 22.
4 Note that we are not specifying what will be
required as a minimum level of documentation in
all cases because facts and circumstances will vary
significantly based on, among other things,
geography, meteorology and the relative complexity
of source contributions to measured concentrations
in any particular location. 72 FR at 13573. A
particular instance may require more or less
documentation, depending on the particular facts or
circumstances. The simplest demonstrations could
consist of newspaper accounts or satellite images to
demonstrate that an event occurred together with
daily and seasonal average ambient concentrations
to demonstrate an unusually high ambient
concentration level, which is clearly indicative of
an exceptional impact. Such is the case with events
such as volcanic eruptions and nearby forest fires.
Continued
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is there any requirement for specific
types of documentation for EPA to
demonstrate its alternative ground for
excluding the data under principles
established in 40 CFR part 58, appendix
E, that during the period of the nearby
construction the monitor was not
properly sited for purposes of collecting
data for comparison to the NAAQS. 72
FR at 49060–49061.
EPA’s findings were supported by
information from interviews with three
individuals with firsthand knowledge of
the activities that took place near the
monitor, as well as by contemporaneous
documentation from filter sample
tracking reports. These individuals were
the SRR environmental technician
responsible for overseeing the operation
of the monitor, the SRR construction
superintendent, and a private
environmental consultant working for
the Santa Rosa Rancheria EPA
(SRREPA). The construction
superintendent and the consultant
concurred with the SRR environmental
technician’s recollection that grading
and paving of the parking lots took
place in September and October 2006,
and the environmental technician
concluded that these activities caused
the exceedances on September 14 and
20, 2006 and later in October, when the
initial paving had to be removed and the
parking lot repaved.
EPA’s July 18, 2007, Memorandum,
‘‘On-Site Visit to Santa Rosa Rancheria,’’
from Bob Pallarino, EPA, to Sean Hogan,
EPA (Site Visit Memorandum), contains
the following account:
The construction activity entailed grading
and leveling the ground, application of sub-
base material, and paving with asphalt. The
par[k]ing lot was first paved in September
and it is this project which [the SRR
environmental technician] believed caused
the exceedances on September 14 and 20.
* * * the first paving * * * had to be
removed and the parking lot repaved.5 It is
this second part of the paving project which
[the environmental technician] believed
caused the October exceedance. * * * [T]he
SRR environmental consultant stated that he
had witnessed these construction activities
during September and October, 2006. * * *
The construction supervisor concurred with
[the environmental technician’s] recollection
of the construction activity * * *.
Site Visit Memorandum at 2–3.
The information about the timing of
the construction activity, from witnesses
with both firsthand and expert
Id. More documentation would be needed to
support situations that are not as straightforward.
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5 The Site Memorandum stated that the first
paving project ‘‘did not pass inspection and the
paving had to be removed and the parking lot
repaved.’’ The Facility Manager in his letter of
December 2007 referred to the first paving of the
parking lot as ‘‘temporary.’’
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knowledge, is confirmed by
documentation from the California Air
Resources Board (CARB) sample
tracking reports that the SRREPA
environmental technician filled out at
the time the samples were obtained, and
forwarded to CARB along with the
monitored samples. The SRREPA
technician observed the ‘‘sampling
conditions’’ at the time the monitor was
operating and noted on the sample
tracking forms, which are completed
with each sampling run, that there was
‘‘construction nearby.’’ This was
signified by the letter ‘‘J’’. Earthjustice
ignores this corroborating
documentation, cited by EPA in its
proposal, and included in the
rulemaking docket. 72 FR at 49062. It is
significant that these sample tracking
forms were prepared before the filters
from the monitors were sent to and
analyzed by the lab. Thus at the time the
technician noted that nearby
construction was occurring during the
monitoring, he could not have known
whether or not an exceedance was
recorded that day.
EPA’s proposal also showed that the
meteorological data lend support to the
environmental technician’s account of
the events of the days in question. The
winds on the three days that exceeded
the NAAQS were predominantly from
the northwest, north and northeast. This
would indicate that any dust-producing
activity north and northeast of the
monitor would result in high
concentrations of geologic dust being
blown towards the monitor. Site Visit
Memorandum at 2.
Further corroboration of the impact of
the construction on the monitor came
from EPA’s assessment of the proximity
of the monitoring site to the nearby
parking lots. EPA’s onsite inspection
ascertained that one of the parking lots
was within 25 feet of the monitor, and
the other was within 100 feet. 72 FR at
49062.
Reinforcing EPA’s conclusion that
construction activities near the monitor
caused the exceedances was the fact,
pointed to in the proposed rule, that
after completion of the paving projects,
average PM–10 concentrations dropped
by more than 50 percent. Id.
Since the proposal, EPA has obtained
further documentation that the
exceedances occurred during the period
of construction activity in close
proximity to the monitor. The Facility
Director of the Tribe’s hotel and casino
has provided EPA with a letter stating
that asphalt work on the parking lots
close to the monitoring station was
completed between August 15 and
November 4, 2006. Enclosed with the
letter was a billing statement from the
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Tribe’s general contractor for the period
up to August 15, 2006. The statement
shows that work on the parking lots
close to the monitor remained to be
completed after August 15. The letter
from the Facility Director states that at
the time of the monitored exceedances,
there were earthmoving activities
nearby and paving activities near the
site of the monitor ‘‘in a large area for
parking for Tribal Administrators and
for our customers.’’
Thus, in addition to the
documentation available at the time of
the proposal, EPA has provided a letter
from the Tribe and a billing statement
from the general contractor that support
the conclusion that paving work was
occurring at the time of the
exceedances.
Earthjustice argues that because
exceedances did not occur on other days
when construction activities were
occurring, this indicates that
construction did not cause the
exceedances in September and October
2006. But this argument is misleading.
Generally, varying degrees, types and
locations of the construction activity,
and changing meteorological conditions
lead to varying impacts on the monitor.
The fact that construction activities did
not cause exceedances on some days
does not mean that they were not
responsible for the exceedances that
occurred on other days. In addition,
although Earthjustice claims that two
days of violations at the SRR ‘‘correlate
well with violations seen in other parts
of the Valley,’’ no other violations were
monitored in the Valley on September
14 and 20 and October 26, 2006.
Earthjustice also claims that EPA
‘‘still needs to make the other required
showings’’ for exceptional events,
‘‘including that these sources were
reasonably controlled.’’ EC at 22. EPA
made these showings in its proposal,
and Earthjustice did not raise any
specific grounds to challenge them. See
72 FR at 49061–49062. In its proposal
EPA, after discussing whether the
construction activity’s impact on the
monitor was reasonably controllable,
concluded that ‘‘under the particular set
of circumstances presented here, for the
purposes of evaluating the ‘reasonably
controllable’ criterion of the EER, we
deem this criterion to have been
satisfied.’’ EPA found that even if
control measures had been employed,
we cannot be certain they would have
prevented exceedances at the monitor,
and that EPA’s monitor siting rules
provide that the monitor should not be
operated at such a time and place for the
purposes for determining attainment. 72
FR at 49062. We note that the criteria
under the EER do not apply for the
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purposes of our alternative ground, that
the monitor was not properly sited. See
72 FR at 49060–49061. Thus EPA is
finalizing its determination that there
are two independent bases for
determining that the exceedances
recorded at the SRR in September and
October, 2006 should be excluded from
consideration in determining whether
the SJV has attained the PM–10
standard: (1) The monitor was not
properly sited, under the principles
established in part 58, appendix E, and
(2) the construction activity constitutes
an exceptional event under EPA’s EER.
Comment 5: Earthjustice states that
EPA cannot point to any statutory or
regulatory authority that allows it to
treat wind-entrained particulate matter
pollution from land that has been
disturbed by human activities, i.e.,
agriculture or construction as ‘‘natural.’’
Earthjustice observes that, while EPA
cites preamble language in the EER
regarding high winds, this language was
never codified even though the final
rule does contain provisions relating to
the treatment of other anthropogenic
sources such as fireworks and
prescribed fire. Earthjustice suggests
that even though a natural event is
defined in 40 CFR 50.1(k) as ‘‘an event
in which human activity plays little or
no direct causal role,’’ EPA attempts to
define an event in which wind-
entrained dust from agricultural and
industrial operations as natural.
Earthjustice cites legislative history of
the 1990 Clean Air Act Amendments
(CAAA) to support its contention that
this result defies logic and flies in the
face of Congressional intent as
evidenced by Congress’s refusal to
excuse dust storms from Mono and
Owens lakebeds because they were
human-caused. Earthjustice claims that
if the measures in place are not enough
to prevent exceedances due to wind-
entrained dust, then Congress intended
that additional controls be required.
Response 5: Section 319, as amended,
defines an exceptional event as an event
that affects air quality, is not reasonably
preventable or controllable, is a natural
event or is an event caused by human
activity that is unlikely to recur at a
particular location. Under this
definition, for an event to qualify as an
exceptional event, both natural events
and events caused by human activity
must be events that are not reasonably
preventable or controllable. Therefore,
Earthjustice’s conclusion that
designating an event ‘‘natural’’ would
rfrederick on PROD1PC67 with RULES
‘‘allow air agencies to avoid controls’’ is
erroneous. An agency flagging data as
due to an exceptional event, including
a high wind event, will be required to
show that the event was not reasonably
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
preventable or controllable. In the
preamble to the final rule, EPA
explained how it would evaluate
whether an agency had been able to
successfully demonstrate that an event
met this criteria by taking into account
the controls in place, the wind speed,
and other factors. 72 FR at 13565–
13566, 13576–13577. As explained
elsewhere in our responses to comments
below, in this particular instance the
District’s Regulation VIII (general
fugitive dust rules) and Rule 4550
which limits fugitive dust emissions
specifically from agricultural operations
through Conservation Management
Practices (CMPs) were in place. In
addition, the District has adopted and is
implementing EPA-approved best
available control measures (BACM) for
all significant sources of PM–10 in the
SJV.
Earthjustice incorrectly states that if
an event is classified as a natural event,
a state would be able to ‘‘avoid
controls.’’ In the proposed EER, EPA
explained that it was proposing to treat
high wind events that result in
exceedances or violations as a natural
event provided a clear causal
relationship between the wind event
and the measured exceedance was
established and contributing
anthropogenic activities were
‘‘reasonably well-controlled.’’ 6 In the
final rule, after considering the
comments on high wind events
including on the terminology and the
definition, EPA adopted an approach
that considers high winds a natural
event if contributing anthropogenic
activities are controlled through
‘‘reasonable and appropriate measures.’’
72 FR at 13566. To qualify as a natural
event (a subset of exceptional events
under the rule) a state must
demonstrate, among others, that dust
from contributing anthropogenic
sources was ‘‘reasonably well-controlled
at the time the event occurred.’’ 72 FR
at 13576. The EER, therefore, has
already defined what constitutes a high
wind event through appropriate notice
and comment rulemaking. Thus, the
question of whether a high wind that
causes exceedances or violations due to
entrainment of dust from anthropogenic
sources can be defined as a natural
event is not an issue that is open for
comment in this rulemaking. In this
6 EPA made this statement in the context of PM–
2.5 because at the time, the Agency was considering
adopting the PM10–2.5 standard and noted that
states would be expected to have appropriate
controls for contributing anthropogenic emissions
under the definition of the proposed PM10–2.5
indicator. The Agency, eventually, did not finalize
the PM10–2.5 indicator and instead retained the 24-
hour PM–10 standard.
PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14691
case, the Agency has only asked for
comments on whether the particular
high wind event met the criteria and
procedures established under the rule,
e.g., establishing a causal connection,
reasonable controls on anthropogenic
sources, wind speed and direction, etc.,
and not on whether these criteria are
appropriate.
Earthjustice cites to the legislative
history of the 1990 CAAA, for the
discussion on Owens and Mono
lakebeds where Congress indicated that
diversion of water from these lakes
created an anthropogenic source of dust.
From this Earthjustice contrives an
overly-broad conclusion that any ‘‘dust
from lands disturbed by human
activity’’ must be treated as an
anthropogenic rather than a natural
event. Under this proposition gale-force
winds, for example of 100 mph, in an
urban area could not be treated as a
natural event because human activity
would be a contributing factor.
As a matter of record, the legislative
history also demonstrates that EPA
concurred with Congress that the
diversion of water created an
anthropogenic source of dust in the
Owens and Mono lakebeds. Pub. L. 101–
549, CAA Amendments of 1990 House
Report No. 101–290(l), May 17, 1990.
EPA, however, does not interpret the
statutory language in a manner that
considers any anthropogenic
contribution to a natural event as
transforming it into an anthropogenic
event. In the Mono and Owens lakebed
situation, EPA believed that the
anthropogenic contribution was such
that dust blown from those areas should
be treated as anthropogenic rather than
natural events. In other high winds
instances, however, where there were
anthropogenic contributions with
adequate controls in place, EPA treated
the high wind events as natural events.
In its Natural Events Policy, EPA
stated that it would treat a high wind
event as a natural event even if the dust
originated from anthropogenic sources,
provided best available control
measures were in place. Memorandum
from Mary D. Nichols, Assistant
Administrator for Air and Radiation to
Regional Air Directors, ‘‘Areas Affected
by PM–10 Natural Events,’’ May 30,
1996 (NEP) at 7. Congress was cognizant
of EPA’s existing policies on natural and
anthropogenic events and how EPA
interpreted and implemented these
policies. In amending section 319,
Congress specifically required EPA to
continue to apply its NEP during the
exceptional events rulemaking process,
an unlikely action if it disagreed with
EPA’s interpretation of natural events.
Section 319 (b)(4)(B). Under the NEP,
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EPA treated high wind events as natural
events and reasonably well-controlled if
contributing anthropogenic sources had
BACM in place. NEP at 7. During the
exceptional events rulemaking, EPA
sought comment on a number of options
for mitigation requirements, including
whether to continue to require BACM
for such events. After considering all
comments on the proposed options,
EPA explained in the preamble to the
final rule that it would continue to
require that anthropogenic sources
contributing to high wind events be
well-controlled through reasonable and
appropriate measures. 72 FR at 13566.
EPA, therefore, believes its
interpretation of a high wind event as
set forth in the preamble to the EER
conforms to congressional intent and
the requirements of section 319.
Also, in response to Earthjustice’s
assertion that EPA cites no statutory or
regulatory authority that permits us to
treat high wind as a natural event, as
discussed above, Congress was aware of
EPA’s interpretation of natural events as
evidenced by the statutory reference to
the NEP (Section 319(b)(4)(B)) and it is
self-evident that volcanic, seismic, high
wind, and other similar events are
natural events under section 50.1(k) of
the EER. Therefore, EPA did not find it
necessary to specifically list these
events as exceptional events in the final
rule. When asking for comments in the
proposed rule, we noted that some of
these exceptional events (including
volcanic, seismic and high wind events)
have ‘‘unusual characteristics’’ and
needed a fuller discussion in the
preamble regarding how states may
meet the requirements established in the
EER. 71 FR at 12605. EPA believed that
this explanation in the preamble was
sufficient to assist states in developing
their demonstration requirements and
did not make it necessary to specifically
list these events as exceptional events in
the final rule.
Comment 6: Earthjustice claims that
even if EPA had codified the preamble
language allowing dust from lands
disturbed by human activity to be
excused, EPA offers no evidence to
show whether the sources that allegedly
were responsible for the dust were
reasonably well controlled at the time
the event occurred. Earthjustice states
that EPA must show that the sources
were actually controlled, not just that
they were subject to controls.
Earthjustice believes that reasonable
controls would have prevented dust
rfrederick on PROD1PC67 with RULES
from being entrained by the stated wind
speeds and that if the winds at issue
picked up the large amounts of
particulate concentrations claimed, then
by definition, these sources were not
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
reasonably controlled. With respect to
September 22, 2006, Earthjustice asserts
that the fact that the District claims that
the dust came from anthropogenic
sources being scoured by winds under
25 mph for a short period of time means
that reasonable measures could not have
been in place. Therefore, Earthjustice
claims that either the dust was not
caused by wind or the sources did not
have reasonable controls that would
have prevented the event. With respect
to October 25, 2006, Earthjustice asserts
that none of the 90 inspections
conducted by the District was in or
around the Lemoore/Corcoran area
where the dust allegedly originated.
Response 6: With respect to
reasonable controls, in the preamble to
the EER we explained that ‘‘ambient
particulate matter concentrations due to
dust being raised by unusually high
winds will be treated as due to
uncontrollable natural events where
* * * the dust originated from
anthropogenic sources within the State,
that are determined to have been
reasonably well-controlled at the time
that the event occurred, or from
anthropogenic sources outside the
State.* * * In cases where
anthropogenic sources are determined
to have contributed to exceedances or
violations due to high wind events at air
quality monitoring sites, per our
decision in this rulemaking concerning
the action that States must take to
mitigate the impact of exceptional
events on public health * * * States
must take reasonable and appropriate
measures to mitigate the impact
associated with the event on public
health.’’ 72 FR at 13576–13577.
As we observed in our proposed
affirmation rule, Regulation VIII and
District Rule 4550 were in place at the
time of the events in question.
Furthermore, we noted that EPA has
approved the District’s BACM
demonstration for all significant sources
of PM–10 in the SJV as meeting CAA
section 189(b)(1)(B). See 72 at 49053
and 49057. Moreover, the District
conducted numerous inspections of
PM–10 sources in the SJV on September
22 and October 25, 2006. Thus controls
beyond those deemed ‘‘reasonable’’
were being implemented and enforced
in the SJV on those dates.
Contrary to Earthjustice’s apparent
belief, there is nothing in either the
preamble to the EER or the rule itself
that requires EPA to show that all
sources were ‘‘actually controlled’’ at
the time of the events. Moreover, there
are thousands of fugitive dust sources in
PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
the SJV,7 an area of nearly 25,000 square
miles which constitutes approximately
16 percent of the geographic area of
California. 2003 PM10 Plan for the SJV
at 2–1. As a result it would be a
practical impossibility for the District, a
publicly-funded agency, to determine
whether every source was in
compliance with its regulations on any
given day, the standard Earthjustice
evidently espouses. The fact that the
District conducted 90 inspections on
October 25, 2006 and none was in
Lemoore or Corcoran simply illustrates
the magnitude of the task Earthjustice
suggests should be mandatory for the
exclusion of data from an exceptional
event.
Finally, Earthjustice presents no
support for its contention that controls
on anthropogenic sources beyond those
already in place would have prevented
dust from being entrained by the stated
wind speeds. Earthjustice simply asserts
(see comment 7) without evidence that
there are numerous measures available
that could have prevented or reduced
entrainment of particulate matter. As we
have shown, reasonable controls were in
place on the days in question and the
exceedances occurred notwithstanding
those controls. See also our response to
comment 7 below.
Comment 7: Earthjustice further
asserts that there are numerous
measures available that could have
reduced or prevented the entrainment of
particulate matter by winds above the
entrainment threshold of 18 mph, many
of which are included but not required
by the District’s agricultural CMP rule
and Regulation VIII. Earthjustice
provides a number of examples that it
claims are effective in reducing or
eliminating erosion and transport of soil
particles during high wind events.
Earthjustice concludes that even
assuming 100 percent compliance with
the agricultural CMP rule and
Regulation VIII, ‘‘not one of these
measures is required to be in place by
these so-called BACM level controls.’’
Thus Earthjustice alleges that sources
could be 100 percent in compliance
with District rules and still not be doing
anything to prevent wind-generated
entrainment of particulates.
Response 7: As we stated in the
preamble to the EER, where wind speed
results in particulate matter
exceedances, a clear causal relationship
must be demonstrated between the
exceedances measured at the air quality
monitoring site and the high wind event
7 For example, the District has approved over
6,000 applications under Rule 4550. ‘‘Conservation
Management Practices Program Report for 2005,’’
January 19, 2006, SJVAPCD at 5.
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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
in question in order for data affected by
these events to be excluded under the
weight of evidence approach. 72 FR at
13566, footnote 11. We further stated
that ‘‘EPA will consider in the weight of
evidence analysis winds that produce
emissions contributed to by
anthropogenic activities that have been
controlled to the extent possible through
use of all reasonably available
reasonable and appropriate measures.’’
Id.
EPA approved Regulation VIII as
BACM on February 17, 2006 (71 FR
8461) and Rule 4550 as BACM on
February 14, 2006 (71 FR 7683). The
control measures in these rules are
designed to reduce fugitive dust
emissions. A number of the measures
that sources can choose in compliance
with the rules are also specifically
designed to reduce or prevent
entrainment of particulate matter during
wind events. See, for example, in the
‘‘List of Conservation Management
Practices,’’ May 20, 2004, for Rule 4550
in the ‘‘Cropland—Other’’ category the
following measures: alternate till, bulk
materials control, cover crops,
permanent crops, surface roughening,
wind barrier.
EPA determines what controls
constitute ‘‘all reasonably available
reasonable and appropriate measures’’
on a case by case basis. With regard to
the SJV, EPA has agreed with the
District’s finding that ‘‘* * * unlike
other arid western PM–10 serious
nonattainment areas, the SJV does not
have a regular and repeated windblown
dust problem.’’ 71 FR at 7686. In
addition, in responding to a comment
on its proposed approval of the 2003
PM–10 serious area plan for the SJV,
EPA observed that ‘‘[o]nly five PM–10
exceedance days spanning a 13-year
period were identified as associated
with strong winds.’’ 69 FR 30006, 30033
(May 26, 2004). Under these
circumstances, EPA believes that it was
not necessary for the District’s rules to
mandate the selection of windblown
dust measures and that the BACM
controls being implemented in the SJV
constitute ‘‘all reasonably available
reasonable and appropriate measures.’’
Comment 8: Earthjustice argues that
the events at issue cannot be claimed as
exceptional because the District did not
make its demonstration according to the
procedures outlined in the EER.
Specifically, Earthjustice states that
while EPA relies on demonstrations
prepared by the District in April and
rfrederick on PROD1PC67 with RULES
May 2007, the only opportunity for
public comment provided by the
District was on the February 2007
version of the analysis. Moreover,
Earthjustice states, only 15 calendar
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
days were provided for comment on the
February version and the preamble to
EPA’s EER provides for a 30-day
comment period. Earthjustice states that
to the extent that EPA believes preamble
statements to be enforceable, the event
cannot be deemed exceptional because
the District did not meet the procedural
requirements in the EER. Earthjustice
also asserts that since the District’s
rationale for flagging the September 22,
2006 exceedances changed so markedly
as to make comments on the first draft
irrelevant, the documentation should
have been put out for a second round of
public comment. Earthjustice further
states that insofar as the EER applies to
EPA’s affirmation action, the District
also failed to meet its procedural
requirements that documentation
justifying exclusion must be submitted
no later than 12 months before a
regulatory decision is made. Here,
Earthjustice asserts, EPA based its
regulatory decision to find the SJV in
attainment on the exclusion of data
before any demonstration supporting
the exclusion was drafted by the State.
Response 8: The public did have an
adequate opportunity for review and
comment on the State’s documentation
of the exceptional events. Earthjustice
complains that the State did not provide
a 30-day comment period on the
documentation of exceptional events,
and further contends that there was no
opportunity to review and comment
after the District revised this
documentation. EPA’s EER provides
that a state that has flagged data as being
due to an exceptional event and that is
requesting exclusion of the data shall
‘‘after notice and opportunity for public
comment, submit a demonstration’’ to
EPA, along with any public comments
it received. 40 CFR 50.14(c)(3)(i).
With respect to Earthjustice’s first
contention regarding the 30-day
comment period, the EER contains no
such requirement. The language cited by
Earthjustice that purports to
characterize 30 days as a requirement is
found in the preamble only, 72 FR
13574, and does not reflect the language
of the rule. Thus, while indicative of a
period that EPA would deem
reasonable, the preamble language
regarding a 30-day comment period
does not serve to make such a period
mandatory. Nor does it mean that a
shorter comment period should be
deemed unreasonable. Earthjustice
concedes that in February 2007 the
District provided a two week comment
period for its initial documentation of
the September, October and December
2006 exceedances. The District received
no comments or requests for extension
PO 00000 Frm 00035 Fmt 4700 Sfmt 4700
14693
of the comment period.8 On March 21,
2007, Earthjustice filed with EPA a
petition to withdraw EPA’s October
2006 attainment determination, which
cited to and discussed the District’s
initial documentation. This petition,
however, was directed to EPA and not
to the District or the State. Earthjustice,
having failed to request an extension of
the comment period and to address
comments to the District and the State,
cannot now be heard to complain about
the length of the initial comment period.
Subsequently, the District posted on
the ‘‘Public Notices’’ section of its Web
site revised versions of the
documentation for exceedances on these
three days at issue, and thus the revised
documentation was also available for
public review and comment. These
revised versions modified and clarified
the technical analysis of the high wind
events. For the September 22 event, the
District posted on its Web site a revised
set of documentation, dated April 20,
and CARB subsequently submitted it to
EPA. The District submitted an
Addendum to CARB on May 23, 2007,
which it again posted on its Web site,
and CARB later submitted it to EPA. 72
FR at 49050. For the October 25 event,
the District posted on its Web site a
revised set of documentation, dated
April 23, and CARB again subsequently
submitted it to EPA. 72 FR at 49054. For
the December 8, 2006 event, which
Earthjustice does not contest is an
exceptional event, the District revised
its documentation and submitted it to
CARB on May 23, 2007, and posted it
on its Web site. At CARB’s request the
District made further revisions which it
submitted to CARB on June 6, 2007, and
posted on its Web site. 72 FR at 49057.
The State later submitted it to EPA. Id.
Thus each set of revised
documentation was available to the
public in the ‘‘Public Notices’’ section of
the District’s Web site for months prior
to EPA’s August 15, 2007 issuance of its
proposed rule, and EPA has found no
indication that comments were
submitted or inquiries received about
the revised documentation. EPA
therefore believes that there was
adequate opportunity for the public to
comment on the revised demonstrations
made by the District and CARB. The fact
remains that no comments were
submitted to the District or CARB on the
original versions of the documentation,
nor does it appear that there were any
requests for an extension of the
comment period that closed on March 5,
8 Contrary to Earthjustice’s contention (EC at 3,
footnote 3), EPA in its proposal did nothing to
‘‘hide’’ the date that the documentation became
available. EPA simply stated that the
documentation became available in February.
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 14694 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
2007. Similarly, EPA knows of no
comments or requests regarding the
comment period that were submitted on
the subsequent versions of the
documentation that were posted on the
District’s Web site.
Earthjustice further contends that EPA
has failed to meet the requirement that
a demonstration be submitted to EPA no
later than 12 months ‘‘prior to the date’’
a regulatory decision ‘‘must’’ be made
by EPA. EER, section 50.14(c)(3)(i). We
note initially that this section of the EER
is designed for EPA’s benefit, to furnish
adequate time to review documentation,
and it is thus for EPA to determine
whether we require the full time allotted
by the rule.
Furthermore, in the preamble we
‘‘recognize that special circumstances
could dictate more expedited data
delivery, flagging, and minimal
demonstrations * * *.’’ 72 FR at 13571.
In this case, where EPA is acting to
affirm a prior attainment determination
that recognized the need for additional
evaluation of preliminary data, EPA
finds there is value in proceeding
expeditiously to obtain and review the
State’s documentation of those data and
surrounding exceptional events.
Moreover, this action to affirm EPA’s
attainment determination is not a
regulatory decision that ‘‘must’’ be made
by a certain date, and therefore the 12-
month requirement is not applicable.
Finally we note that the bulk of the
revised documentation for the
September and October 2006
exceedances at issue here was submitted
to EPA in April and May 2007, well in
advance of EPA’s final regulatory
decision in this rulemaking. Thus EPA
finds that, for all the reasons set forth
above, the timing of submission of the
documentation here was adequate for
purposes of section 50.14(c)(3)(i) of the
EER.
Earthjustice also complains that in
issuing the October 2006 determination
of attainment, EPA made the
determination to finally concur in the
flagging of exceptional events prior to
receiving the State’s documentation.
The procedural validity of the October
2006 determination, and whether it
provided adequate notice and comment,
is not at issue in today’s rulemaking.
Thus Earthjustice’s contentions with
regard to notice and comment issues
arising from the October 2006
rulemaking are misplaced here.
Moreover, Earthjustice’s contentions
are belied by the facts. EPA’s October
rfrederick on PROD1PC67 with RULES
2006 determination of attainment made
clear that the data showing exceedances
on September 22, 2006 were
preliminary. EPA stated that once
quality-assured data were available,
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EPA would review those data and
CARB’s request with respect to them,
evaluate whether the data qualified for
exclusion as caused by exceptional
events, and determine whether the
determination should be withdrawn.9
See discussion in EPA’s proposed
affirmation rule, 72 FR at 49064. See
also 71 FR 63642.
In today’s rulemaking EPA has
fulfilled its promise by providing ample
opportunity for comment on the State’s
documentation and EPA’s evaluation of
exceedances under the EER prior to
issuing a final concurrence. As EPA
noted in its proposed affirmation rule,
our purpose here is not to take comment
on the issues raised by the 2006
attainment determination, except to the
extent that they affect EPA’s ability to
determine that the SJV continued to
attain the PM–10 standard through
2006. 72 FR at 49047. The October 2006
rulemaking, which is not at issue in this
current action, did not purport to be a
final concurrence on the State’s
exceptional events documentation for
the September 22, exceedances. Today’s
rulemaking addresses quality-assured
data for September, October and
December 2006, for which the State has
provided exceptional events
documentation.
Comment 9: Earthjustice states that
EPA argues that at the time of the
attainment finding the Agency merely
deferred its determination of the impact
of the preliminary data until they could
be quality assured and the State had an
opportunity to show that the
exceedance was caused by an
exceptional event. Earthjustice claims
that the data at issue had in fact been
processed by the CARB laboratory and
thus already quality assured by the State
when EPA was notified of the
September 22, 2006 exceedances. In this
respect, Earthjustice believes that EPA
mischaracterized CARB’s October 17,
2006 letter to EPA to mean that the data
from the filter analyses were
preliminary. Thus, Earthjustice
concludes that EPA’s decision not to
consider the September 22 exceedances
in its October 17, 2006 attainment
finding is a violation of law and an
abuse of discretion. Earthjustice also
states that this violation of the
Administrative Procedure Act (APA)
cannot be cured with this rulemaking’s
post-hoc rationalization. Earthjustice
interprets 40 CFR 51.14(c)(2)(ii) to mean
that an exceedance must be considered
9 As EPA noted in its proposed affirmation rule,
EPA’s October, 2006 final determination did not
ignore the exceedances that occurred in October
2006 since these occurred eight days after EPA
promulgated its final determination of attainment.
72 FR at 49064.
PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
an exceedance unless and until EPA
gives final concurrence following a
thorough, convincing, publicly
reviewed demonstration that the data
can be ignored.
Response 9: As noted in the response
to comment 8 above, the adequacy and
validity of the October 2006 rulemaking
is not at issue in this proceeding.
Whether the APA was violated in that
rulemaking is not at issue here. In this
current rulemaking, EPA thoroughly
reviewed and proposed to concur with
the documentation submitted by the
State, and provided full opportunity for
public review and comment before
finalizing its concurrence with the flags,
and before excluding the data from a
final determination of attainment. The
purpose of this rulemaking is to assess
the quality-assured data and
documentation of exceptional events
claims in the context of notice and
comment rulemaking. Thus, even if, for
the sake of argument, we accept
Earthjustice’s contentions that there
were procedural deficiencies in the
October 2006 rulemaking, EPA would
have cured any such deficiencies with
the procedures it has followed in this
rulemaking.
In any event, Earthjustice is incorrect
in its assertions that, at the time of the
October 2006 rulemaking, data for
September 22, 2006 were not
preliminary and had been quality
assured. The data for the September 22
exceedances were plainly preliminary.
An EPA staff employee e-mailed a
CARB branch chief an informal request
to ‘‘find out if there was any preliminary
data available from the ARB lab.’’ E-mail
from Bob Pallarino, EPA, to Karen
Magliano, Chief, Air Quality Data
Branch, Planning and Technical
Support Division, CARB, October 12,
2006. On October 13, 2006 she
forwarded to EPA an informal e-mail
originating from a CARB staffer. The e-
mail included data from filter analyses
of several monitors, which set forth
numerical values representing
monitored data. That e-mail stated
clearly: ‘‘Of course, all the data is
preliminary.’’ E-mail from Scott
Randall, Inorganic Laboratory Section,
Northern Laboratory Branch, CARB, to
Cliff Popejoy, Inorganic Laboratory
Section, Northern Laboratory Branch,
CARB, October 13, 2006 (forwarded to
Bob Pallarino by Karen Magliano). Thus,
CARB represented and EPA reasonably
believed that the data showing
monitored exceedances were
‘‘preliminary’’ and not quality assured.
Indeed, EPA believed that the normal
data validation and verification
processes had not been undertaken, and
that, in fact, the data had not been
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submitted to EPA’s Air Quality System EPA has conducted notice and comment
(AQS) database 10 or certified by CARB. rulemaking on documentation that the
The message that the CARB staffer sent State has submitted to support those
was in response to an informal request flags.
from EPA staff, and in that context EPA Comment 10: For the wind events,
did not consider it an official CARB Earthjustice maintains that the data
submission of data. The informal and offered by the District and relied upon
preliminary nature of the information is by EPA does not demonstrate a ‘‘clear
further indicated by the fact that the causal relationship’’ because
numerical values for PM–10 reported in exceedances were being measured
the e-mail were not accompanied by before the events occurred.
scientific units, which would be Response 10: EPA disagrees with
Earthjustice’s conclusion for the reasons
essential documentation in any official
submission of quality-assured data, and discussed below. Initially it is important
to understand that the 24-hour PM–10
could only be inferred by EPA based on
NAAQS, 150 µg/m3, is a 24-hour
usual practice.
average concentration. This means that
EPA did not therefore, as Earthjustice
individual hourly concentrations at any
contends, ‘‘mischaracterize’’ the data
given monitoring location may exceed
from the filter analyses, when it 150 µg/m3, but until all 24 hours of a
described the data as ‘‘preliminary.’’ EC day are sampled a complete daily
at 11, footnote 9. CARB itself reading cannot be calculated. Therefore
characterized the data as preliminary it is incorrect to characterize the data, as
when it forwarded them to EPA. Earthjustice does, as showing that
In any event, as noted above, what is NAAQS exceedances were measured
at issue in this rulemaking is EPA’s before the wind events.
concurrence on the exceptional events To support its contention, Earthjustice
documentation for quality-assured data states that fugitive dust sources in the
subsequent to EPA’s October 2006 Lemoore area on September 22 and
determination, and not the procedural October 25, 2006 could not have caused
validity of that prior determination. It is the Corcoran NAAQS exceedances since
clear in this rulemaking that EPA is the first hourly PM–10 concentrations
determining to finally concur on the exceeding 150 µg/m3 at Corcoran
State’s flagging of the data only after occurred either an hour before or at the
same time as the Lemoore
meteorological station recorded wind
speeds exceeding the District’s
threshold wind speed. From these facts,
Earthjustice concludes that since the
monitor was already recording an
hourly concentration above the NAAQS
before the dust-laden winds from
Lemoore 11 arrived on September 22 and
October 25, the monitor could not have
been impacted by them.
In evaluating this conclusion it is
instructive to look at any number of
days where the level of an hourly PM–
10 concentration at Corcoran exceeded
the level of the 24-hour NAAQS, yet the
24-hour average concentration for the
day did not exceed the NAAQS. October
26 and 27, 2006, March 26 and 27, 2007,
April 17, 2007, May 2 and 21, 2007, and
June 5, 2007, all experienced one or
more hours exceeding the level of the
NAAQS yet the NAAQS for the day was
not exceeded. See Table 1 below. The
most extreme example is April 17, 2007,
on which four continuous hourly
concentrations greater than 150 µg/m3
were recorded from 4:00 p.m. Pacific
Standard Time (PST) through 7 p.m.
PST (181, 466, 460, 236 µg/m3,
respectively), yet the overall 24-hour
average concentration for that day was
only 91 µg/m3.

TABLE 1.—NON-EXCEEDANCE DAYS WITH ONE OR MORE HOURLY PM–10 CONCENTRATIONS ABOVE 150 µG/M3 AS
MEASURED AT CORCORAN
Oct 26 Oct 27 Mar 26 Mar 27 Apr 17 May 2 May 21 Jun 5
Hour* 2006 2006 2007 2007 2007 2007 2007 2007
(µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3)

0 ....................................................................... 157 79 8 0 27 18 17 21
1 ....................................................................... 143 135 11 0 26 14 16 15
2 ....................................................................... 146 126 8 1 30 13 15 12
3 ....................................................................... 147 89 11 3 31 11 13 13
4 ....................................................................... 161 69 9 3 29 12 15 24
5 ....................................................................... 175 91 10 3 63 26 16 24
6 ....................................................................... 194 221 22 5 73 23 25 22
7 ....................................................................... 232 184 19 7 34 25 28 19
8 ....................................................................... 115 158 16 0 34 20 35 14
9 ....................................................................... 66 149 12 8 33 13 42 18
10 ..................................................................... 53 107 2 1 22 16 59 23
11 ..................................................................... 92 117 6 18 21 16 66 35
12 ..................................................................... 128 86 8 122 15 20 72 61
13 ..................................................................... 128 70 17 162 26 22 74 87
14 ..................................................................... 133 91 7 152 54 25 85 77
15 ..................................................................... 115 69 7 190 138 28 84 254
16 ..................................................................... 126 87 18 54 181 151 94 169
17 ..................................................................... 152 116 19 86 466 239 195 145
18 ..................................................................... 151 140 128 47 460 61 180 173
19 ..................................................................... 145 116 407 8 236 27 127 235
20 ..................................................................... 161 126 48 17 136 13 108 65

10 Data from air monitors operated by state and Lemoore area, the Corcoran area, and the size of the area represented by a monitor is
local agencies in compliance with EPA monitoring Bakersfield area. When analyzing data, the State, dependent on a number of factors, including, but
District and EPA use information collected from
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requirements must be submitted to AQS. Heads of
monitoring agencies annually certify that these data
are accurate to the best of their knowledge. See 71
FR at 40953.
11 Throughout this final rule when we refer to
Lemoore, Corcoran and Bakersfield, we mean the
specific points where the monitors are located,
whether meteorological monitors or PM–10
monitors. Since it is not possible, due to finite
resources, to monitor pollutant or meteorological
parameters in every location, monitoring locations
are chosen to be representative of larger areas. The
not limited to, the parameter being measured (e.g.,
wind speed, PM–10 concentration), the overall
terrain (e.g., urban, rural, valley, etc.) and any
localized characteristics that may influence the
parameter being measured (e.g., obstructions such
as buildings or trees).

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TABLE 1.—NON-EXCEEDANCE DAYS WITH ONE OR MORE HOURLY PM–10 CONCENTRATIONS ABOVE 150 µG/M3 AS
MEASURED AT CORCORAN—Continued
Oct 26 Oct 27 Mar 26 Mar 27 Apr 17 May 2 May 21 Jun 5
Hour* 2006 2006 2007 2007 2007 2007 2007 2007
(µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3) (µg/m3)

21 ..................................................................... 147 118 16 15 34 14 66 34

22 ..................................................................... 124 141 4 9 14 29 61 27
23 ..................................................................... 130 105 0 10 7 16 66 49

Daily Average ................................................... 137 116 34 38 91 36 65 67

Source: EPA Air Quality System Database.
* Hours are in PST. All State and local ambient air pollutant monitoring equipment in California operates on PST all year and is never adjusted
for Daylight Savings Time. For example, hour 12 in the table is 1 p.m. Pacific Daylight Time (PDT).

Thus, as can be seen from Table 1 and speeds recorded in Lemoore did not the high concentrations measured
the discussion above, Earthjustice is exceed the threshold wind speed until beginning at 7 a.m. PST on September
incorrect when it concludes that dust- 7 a.m. On October 25 the Corcoran 22 and 6 a.m. on October 25 and
laden winds from Lemoore could not hourly PM–10 concentration first continuing throughout the day were due
have affected the Corcoran monitor on exceeded the level of the NAAQS at 6 to transport of dust by high winds in the
September 22 and October 25, 2006 a.m., the same time the Lemoore Lemoore area, and thus resulted in the
because concentrations above the level meteorological station recorded winds exceedance of the 24-hour NAAQS. In
of the NAAQS were recorded at the in excess of the threshold speed.13 reaching this conclusion, EPA evaluated
monitor before the winds arrived. By However, as set forth below, the data the available hourly concentration data
failing to account for all 24 hours of the show that on September 22 the winds at
from the Corcoran monitoring site 15
day, Earthjustice has misinterpreted Lemoore began exceeding the threshold
from October 1, 2006 through June 30,
how EPA determines compliance with speed at 6 a.m. PST, and likely began
the 24-hour PM–10 NAAQS. affecting the concentrations at the 2007 to determine how often the
Earthjustice further states that fugitive Corcoran monitor by the time Corcoran site recorded high hourly
dust sources in the Lemoore area on concentrations were recorded at 7 a.m. concentrations in the morning. While
September 22 and October 25, 2006 PST.14 On October 25, the winds high morning concentrations were
could not have caused the Corcoran recorded at Lemoore exceeded the relatively rare in the data we evaluated,
NAAQS exceedances since the first threshold speed at 5 a.m. PST and likely when they do occur they do not always
hourly PM–10 concentrations exceeding affected the concentrations recorded at result in a 24-hour average
the level of the NAAQS at Corcoran the Corcoran monitor beginning at 6 concentration that exceeds the NAAQS.
occurred either an hour before or at the a.m. PST. Thus on both days there was Table 2 below compares days with high
same time as the Lemoore at most a period of one or two hours morning concentrations, October 26 and
meteorological station recorded wind where the concentrations at the monitor 27, 2006, that did not exceed the 24-
speeds exceeding the 18 mph threshold that exceeded the standard might not hour NAAQS with September 22 and
speed.12 Earthjustice notes that on have been attributable to the winds from October 25, 2006, days with high
September 22 the 6:00 a.m. hourly PM– Lemoore. morning concentrations that ultimately
10 concentration at Corcoran exceeded Nevertheless, based upon did exceed the 24-hour NAAQS.
the level of the NAAQS and wind meteorological data, EPA believes that

TABLE 2.—CORCORAN HOURLY CONCENTRATIONS ON SEPTEMBER 22, OCTOBER 25, OCTOBER 26 AND OCTOBER 27,
2006
September 22, October 25, October 26, October 27,
Hour (standard time) 2006 2006 2006 2006
(conc. µg/m3) (conc. µg/m3) (conc. µg/m3) (conc. µg/m3)

0 ....................................................................................................................... 63 84 157 79
1 ....................................................................................................................... 39 57 143 135
2 ....................................................................................................................... 51 38 146 126
3 ....................................................................................................................... 64 42 147 89
4 ....................................................................................................................... 55 30 161 69
5 ....................................................................................................................... 78 39 175 91

12 The State cites a 2002 California Regional PM– meteorological and PM–10 concentration data 15 In October 2006, the SJVAPCD began the

10/PM–2.5 Air Quality Study (2002 CRPAQS
Study) that established a dust-generating wind
speed threshold of 17.8 mph to support its
conclusion that these wind speeds were sufficient
to erode soils and entrain dust into the atmosphere
as well as to exacerbate the entrainment of dust
from the anthropogenic activities. See our proposal
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which were reported in PST. This means that the
wind speeds increased an hour earlier than had
previously been reported in the State’s
documentation. Therefore when Earthjustice refers
to wind data from Lemoore at 6 a.m. and 7 a.m.,
the actual times were 5 a.m. and 6 a.m. PST.
routine submittal of continuous PM–10 data to
EPA’s AQS database. These data are recorded with
a special purpose Federal Equivalent Method (FEM)
monitor and the District began submitting these
data in response to new requirements contained in
EPA’s revised monitoring regulations (71 FR 61236,

at 72 FR at 49052.
13 As will be discussed further below, EPA
uncovered an error in the reporting of the
meteorological data from Lemoore. The data for
Lemoore winds were reported in the State’s
documentation in PDT as opposed to the other
14 Hourly concentrations recorded by PM–10
continuous monitors are reported in the beginning
hour. That is, an hourly average concentration
calculated from readings taken between the hours
of 7 a.m. and 8 a.m. would be reported as the
average hourly concentration for 7 a.m.
October 17, 2006). Prior to this regulation revision,
air monitoring agencies were not required to submit
special purpose monitoring data to the AQS
database. Therefore, the amount of certified
pollutant data available for our analysis is limited
to October 1, 2006 through September 30, 2007.

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TABLE 2.—CORCORAN HOURLY CONCENTRATIONS ON SEPTEMBER 22, OCTOBER 25, OCTOBER 26 AND OCTOBER 27,
2006—Continued
September 22, October 25, October 26, October 27,
Hour (standard time) 2006 2006 2006 2006
(conc. µg/m3) (conc. µg/m3) (conc. µg/m3) (conc. µg/m3)

6 ....................................................................................................................... 170 269 194 221

7 ....................................................................................................................... 306 346 232 184
8 ....................................................................................................................... 519 651 115 158
9 ....................................................................................................................... 531 674 66 149
10 ..................................................................................................................... 725 777 53 107
11 ..................................................................................................................... 695 794 92 117
12 ..................................................................................................................... 521 681 128 86
13 ..................................................................................................................... 318 580 128 70
14 ..................................................................................................................... 276 510 133 91
15 ..................................................................................................................... 247 302 115 69
16 ..................................................................................................................... 269 179 126 87
17 ..................................................................................................................... 283 184 152 116
18 ..................................................................................................................... 258 180 151 140
19 ..................................................................................................................... 223 178 145 116
20 ..................................................................................................................... 150 166 161 126
21 ..................................................................................................................... 144 201 147 118
22 ..................................................................................................................... 138 183 124 141
23 ..................................................................................................................... 144 150 130 105

Daily average ............................................................................................ 261 304 137 116

Source: EPA Air Quality System Database, ‘‘Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22, 2006’’
San Joaquin Valley Unified Air Pollution Control District, April 20, 2007 and ‘‘Natural Event Documentation, Corcoran and Bakersfield, California,
October 25, 2006,’’ San Joaquin Valley Unified Air Pollution Control District, April 23, 2007.

As can be seen from Table 2, early afternoon and evening. As discussed day without the subsequent high hourly
morning hourly concentrations on above, we believe the increasing concentrations that were caused by
October 26 and 27, 2006 were concentrations for the morning and windblown dust transported from the
comparable to morning hourly values on afternoon for September 22 and October Lemoore area.
September 22 and October 25, 2006. All 25 are associated with an increase in Moreover, an evaluation of
of these days recorded high early hourly wind speeds, as measured in meteorology in the Lemoore area on
morning hourly values. However, the Lemoore. Even if we assume that several October 26 and 27, 2007 shows that the
hourly concentrations on September 22 of the hours of high early morning wind conditions on September 22 and
and October 25, 2006 continue to concentrations at Corcoran on October 25, 2006 were much different
increase throughout the morning and September 22 and October 25 were from October 26 and 27, days that had
into the afternoon and evening while caused by something other than high morning concentrations but
the hourly concentrations for October 26 windblown dust, we have shown that ultimately did not exceed the 24-hour
and 27 begin to decrease after hour 7 there would not have been an NAAQS. Table 3 below summarizes this
and then later increase slightly in the exceedance of the 24-hour NAAQS that information.

TABLE 3.—CORCORAN HOURLY PM–10 CONCENTRATIONS AND LEMOORE HOURLY WIND SPEEDS FOR SEPTEMBER 22,
OCTOBER 25, OCTOBER 26 AND OCTOBER 27, 2006
September 22, 2006 October 25, 2006 October 26, 2006 October 27, 2006

Lemoore Lemoore Lemoore Lemoore

Hour Conc. wind- Conc. wind- Conc. wind- Conc. wind-
µg/m3) speed (µg/m3) speed (µg/m3) speed (µg/m3) speed
(mph) (mph) (mph) (mph)

0 ....................................................................... 63 12 84 10 157 3 79 7
1 ....................................................................... 39 9 57 10 143 0 135 6
2 ....................................................................... 51 10 38 10 146 7 126 7
3 ....................................................................... 64 8 42 17 147 7 89 6
4 ....................................................................... 55 10 30 16 161 8 69 6
5 ....................................................................... 78 8 39 22 175 9 91 7
6 ....................................................................... 170 21 269 22 194 3 221 6
7 ....................................................................... 306 21 346 22 232 0 184 3
8 ....................................................................... 519 28 651 26 115 0 158 0
9 ....................................................................... 531 29 674 29 66 0 149 3
10 ..................................................................... 725 23 777 31 53 5 107 6
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11 ..................................................................... 695 17 794 30 92 3 117 5

12 ..................................................................... 521 17 681 28 128 0 86 3
13 ..................................................................... 318 21 580 26 128 0 70 5
14 ..................................................................... 276 14 510 22 133 0 91 6
15 ..................................................................... 247 5 302 20 115 0 69 7
16 ..................................................................... 269 10 179 14 126 5 87 7

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TABLE 3.—CORCORAN HOURLY PM–10 CONCENTRATIONS AND LEMOORE HOURLY WIND SPEEDS FOR SEPTEMBER 22,
OCTOBER 25, OCTOBER 26 AND OCTOBER 27, 2006—Continued
September 22, 2006 October 25, 2006 October 26, 2006 October 27, 2006

Lemoore Lemoore Lemoore Lemoore

Hour Conc. wind- Conc. wind- Conc. wind- Conc. wind-
µg/m3) speed (µg/m3) speed (µg/m3) speed (µg/m3) speed
(mph) (mph) (mph) (mph)

17 ..................................................................... 283 9 184 3 152 3 116 5

18 ..................................................................... 258 6 180 6 151 5 140 6
19 ..................................................................... 223 8 178 8 145 7 116 ................
20 ..................................................................... 150 7 166 9 161 6 126 8
21 ..................................................................... 144 9 201 8 147 8 118 0
22 ..................................................................... 138 0 183 8 124 8 141 3
23 ..................................................................... 144 7 150 ................ 130 6 105 8

Daily Average ........................................... 261 ................ 304 ................ 137 ................ 116 ................
Source: EPA AQS Database, Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowest/.

From this tabulation we can see that 2006,’’ the District reported the Lemoore noted the limitations of the HYSPLIT
while hourly concentrations measured meteorological data in PDT as opposed model, describing it merely as offering
at Corcoran exceeded the level of the to PST. This was confirmed when EPA some support to the State’s
NAAQS during the morning hours on independently obtained data for the demonstration that winds were of the
all four days, it was only on September Lemoore meteorological monitoring appropriate intensity and direction to
22 and October 25, 2006 that sustained station. As noted previously in Table 1, move a plume of dust from the central
high winds in the central SJV, all State and local ambient air pollutant SJV to the Bakersfield area.16 See 72 FR
represented by data from the Lemoore monitoring equipment in California at 49052. EPA is concurring with the
area, generated enough fugitive dust to operates on PST year round and is never State’s causal connection demonstration
cause an increase in the hourly adjusted for Daylight Savings Time. based on actual meteorological data
concentrations in Corcoran recorded at Therefore, the information presented in recorded on September 22 and October
and after 7 a.m. PST on September 22 Table 3 of the State’s April 20, 2007 25, 2006 which show winds of the
and at and after 6 a.m. PST on October documentation and Table 1 of the appropriate intensity and direction
25. These increases in hourly State’s April 23, 2007 documentation occurring at the appropriate times.
concentrations throughout the morning incorrectly lists the time when winds in The State’s demonstration included
hours were a result of the high winds Lemoore reached the threshold wind actual meteorological data that showed
that occurred in the Lemoore area. speeds. that there were wind speeds between
Therefore it is incorrect to conclude, as As can be seen in Table 3 above and Corcoran and Bakersfield that exceeded
Earthjustice does, that the State cannot Tables 4 and 5 below, which reflect the the threshold wind velocities. For
show a causal connection between the proper times for reported wind speeds, example, the State’s demonstration for
winds and the 24-hour PM–10 on September 22, 2006 winds at September 22 included meteorological
exceedances at Corcoran on September Lemoore reached 21 mph, exceeding the data from a monitoring station in
22, 2006 simply because the monitor threshold wind speed, at 6 a.m. PST, Alpaugh (15 miles SSE of Corcoran)
recorded an hourly concentration above which would be 7 a.m. PDT. On October which showed winds in excess of the 18
the level of the NAAQS at the same time 25, 2006 winds at Lemoore reached 22 mph threshold at 9:00 am PST and in
winds in the Lemoore area began to mph at 5 a.m. PST, which would be 6 the 15–16 mph range until 12 pm PST.
exceed the threshold wind speed. a.m. PDT. This adjustment strengthens Wind gusts at Bakersfield Meadow Field
Further, contrary to Earthjustice’s the State’s demonstration by showing Airport also approached the threshold
contention, the winds at Lemoore on that the winds in Lemoore affected the wind speed, with a gust speed of 17
October 25, 2006 exceeded the PM–10 concentrations at Corcoran and mph recorded at 12:30 p.m. PST. The
threshold for entrainment prior to the Bakersfield an hour earlier than hourly concentrations in the Bakersfield
time that increased concentrations were originally reported in the area began to exceed the level of the
recorded at Corcoran and likely affected documentation. PM–10 NAAQS at noon and stayed
those concentrations. Comment 11: Earthjustice asserts that above 200 µg/m3 for the remainder of
Finally, the timing of the wind speeds the one run of the model that EPA relies the day. We discussed the transport of
shows an increase an hour earlier than on demonstrates that there is no dust from the Lemoore and Corcoran
was previously reported, and thus a connection between the events in and 16 The Oildale monitoring site does not record
corresponding earlier impact on the around Lemoore and the exceedances hourly PM–10 concentrations but uses a manual
monitor. In evaluating the State’s measured in Bakersfield and Oildale. PM–10 sampler that provides only 24-hour average
documentation we uncovered an error Response 11: The model to which concentrations. The Bakersfield-Golden State
in how the meteorological data from the Earthjustice refers is the Hybrid Single- Highway monitoring site utilizes both a manual
sampler for average 24-hour PM–10 concentrations
Lemoore meteorological station was Particle Lagrangian Integrated Trajectory and a continuous PM–10 analyzer to provide hourly
reported. In both its April 20, 2007 model (HYSPLIT). However, contrary to concentrations. Since the Bakersfield-Golden State
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‘‘Natural Event Documentation, Earthjustice’s assertion, EPA did not Highway site and the Oildale site are relatively
Corcoran, Oildale and Bakersfield, rely on the State’s HYSPLIT analysis to close to each other (3.5 miles apart), we believe it
is appropriate to use the Bakersfield-Golden State
September 22, 2006,’’ and its April 23, make its decision to concur with the Highway continuous analyzer to characterize the
2007 ‘‘Natural Event Documentation, State’s demonstration of causal temporal distribution of hourly concentrations at
Corcoran and Bakersfield, October 25, connection. Rather, in its proposal, EPA both sites.

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areas in our proposal at 72 FR at 49052 meteorological data supported the were sufficient to transport suspended
for September 22 and at 49055–49056 State’s demonstration and found that PM–10 from the Corcoran area to the
for October 25. As we indicated, the wind data collected at Allensworth Bakersfield area. See our proposed rule
winds between Lemoore and Corcoran State Park (20 miles SE of Corcoran) also at 72 FR at 49052. The wind direction
and Corcoran and Bakersfield were recorded wind speeds on September 22, from all of the sites on September 22 is
sufficient to keep entrained dust 2006 in excess of the 18 mph. While consistent with the south, southeast
suspended so that it could be most of the wind speeds recorded in transport of dust (i.e., winds from the
transported. Alpaugh and Allensworth State Park in north and northwest) from the Lemoore
As part of our review of the State’s the late morning and afternoon hours area to Corcoran and the Bakersfield
documentation we researched whether did not exceed the threshold wind area as demonstrated by Table 4 below.
any other publicly available speed, we believe these wind speeds

TABLE 4.—SEPTEMBER 22, 2006 DAYTIME HOURLY WINDSPEEDS AND CONCENTRATION DATA FOR THE CENTRAL AND
SOUTHERN SJV
Corcoran Bakersfield
Lemoore Allensworth State Park
Hour conc. Alpaugh WS*/WD conc.
WS/WD/gusts WS/WD
(µg/m3) (µg/m3)

6 ............. 21/NW ..................................... 170 5.5/W ..................................... 3/WSW ........................................ 74

7 ............. 21/NW ..................................... 306 3.3/WSW ............................... 6/NNE ......................................... 104
8 ............. 28/NNW/35 ............................. 519 9.7/NNW ................................ 20/NNW ...................................... 78
9 ............. 29/NNW/37 ............................. 531 19.1/NNW .............................. 35 ................................................ 114
10 ........... 23/NW/30 ................................ 725 15.2/NNW .............................. 15/NW ......................................... 103
11 ........... 17/NNW/24 ............................. 695 15.5/NNW .............................. 8/NW ........................................... 139
12 ........... 17/NNW/25 ............................. 521 16.1/NW ................................. ND ............................................... 168
13 ........... 21/NNW .................................. 318 13.6/NW ................................. 2/3 ............................................... 196
14 ........... 14/NNE ................................... 276 12.1/NW ................................. 7/NW ........................................... 239
15 ........... 5/N .......................................... 247 12.1/NW ................................. 8/WNW ........................................ 294
16 ........... 10/N ........................................ 269 10.2/NW ................................. 7/NNW ........................................ 285
17 ........... 9/NNW .................................... 283 9.7/NNW ................................ 5/NNW ........................................ 281
18 ........... 6/N .......................................... 258 5.5/NNW ................................ 1/WSW ........................................ 270
ND—No Data.
Source: ‘‘Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22, 2006,’’ San Joaquin Valley Unified Air
Pollution Control District, April 20, 2007; ‘‘Addendum, Natural Event Documentation, Corcoran, Oildale and Bakersfield, California, September 22,
2006,’’ San Joaquin Valley Unified Air Pollution Control District, May 23, 2007; Mesowest historical meteorological data, Mesowest, http://
www.met.utah.edu/mesowest/.
* Wind Speed data at Alpaugh adjusted to 10 meter AGL based on conversion formula in the ‘‘Addendum, Natural Event Documentation, Cor-
coran, Oildale and Bakersfield, California, September 22, 2006,’’ San Joaquin Valley Unified Air Pollution Control District, May 23, 2007 at 13.

For October 25, the State included all
available meteorological data in its
documentation.17 These data support
the demonstration that winds between
the Corcoran and Bakersfield areas were
sufficient to transport dust on October
25. We believe that the wind speed and
direction data collected at Alpaugh and
Bakersfield Meadow airport, while not
exceeding the threshold wind speed,
show that the winds in this portion of
the SJV on October 25 were sufficient to
transport suspended PM–10 from the
Corcoran area to the Bakersfield area.
See our proposed rule at 72 FR at 49052.
The wind direction from all of the sites
during the daytime hours on October 25
is consistent with the south, southeast
transport of dust (i.e., winds from the
north and northwest) from the Lemoore
area to Corcoran and the Bakersfield
area as demonstrated by Table 5 below.

TABLE 5.—HOURLY DAYTIME WINDSPEEDS AND CONCENTRATION DATA FOR CENTRAL AND SOUTHERN SJV ON OCTOBER
25, 2006
Corcoran
Lemoore Bkrsfld Meadow Airport Bkrsfld conc.
Hour conc. Alpaugh WS*/WD
WS/WD/gusts WS/WD (µg/m3)
(µg/m3)

6 ............. 22/NNW/30 ............................... 269 3.5/SSW ................................... 5/ESE ..................................... 97

7 ............. 22/NNW/32 ............................... 346 2.9/W ........................................ 6/E .......................................... 89
8 ............. 26/NW/36 .................................. 651 5.6/NW ..................................... 0 ............................................. 88
9 ............. 29/NNW/39 ............................... 674 17.0/NNW ................................ 10/NW .................................... 123
10 ........... 31/NW/37 .................................. 777 16.5/NNW ................................ 9/WNW ................................... 148
11 ........... 30/NW/40 .................................. 794 16.8/NNW ................................ 12/W ....................................... 177
12 ........... 28/NNW/38 ............................... 681 15.6/NNW ................................ 12/WNW ................................. 195
13 ........... 26/NNW/35 ............................... 580 14.8/NNW ................................ 6/ND ....................................... 222
14 ........... 22/NNW/31 ............................... 510 13.2/NNW ................................ 7/ND ....................................... 415
15 ........... 20/NW /26 ................................. 302 13.3/NNW ................................ 7/NW ...................................... 406
rfrederick on PROD1PC67 with RULES

16 ........... 14/NNW .................................... 179 12.7/NNW ................................ 3/WNW ................................... 393

17 ........... 3/N ............................................ 184 6.5/NW ..................................... 5/NW ...................................... 416

17 See ‘‘Natural Event Documentation, Corcoran

and Bakersfield, California, October 25, 2006,’’

April 23, 2007 at 44–74.

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 14700 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
TABLE 5.—HOURLY DAYTIME WINDSPEEDS AND CONCENTRATION DATA FOR CENTRAL AND SOUTHERN SJV ON OCTOBER
25, 2006—Continued
Lemoore
Hour
WS/WD/gusts
18 ........... 6/N ............................................
ND—No data available.
Source: ‘‘Natural Event Documentation, Corcoran and Bakersfield, California, October 25, 2006,’’ San Joaquin Valley Unified Air Pollution Con-
trol District, April 23, 2007; Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowest/.
* Wind Speed data at Alpaugh adjusted to 10 meter above ground level (AGL) based on the conversion formula in ‘‘Natural Event Documenta-
tion, Corcoran, Oildale and Bakersfield, California, October 25, 2006,’’ San Joaquin Valley Unified Air Pollution Control District, April 23, 2007 at
25.
In its documentation the State also
included the results of a HYSPLIT
model run by the District to identify
source regions for the parcels of air that
impacted the Corcoran and Bakersfield
monitors on September 22 and October
25, 2006. The District explicitly stated
that the models were not intended to
quantify particulate concentrations but
simply were used to support its view of
the origin of the particulate matter that
impacted the monitors at Corcoran and
Bakersfield. As stated in the proposed
rule, EPA agrees that this model run
supports the conclusions drawn from
the meteorological data presented. See
72 FR at 49052 and 49056.
In its comment letter on the proposed
affirmation rule, Earthjustice relies on
its own computer simulations using the
HYSPLIT model and appears to claim
that, based on its own HYSPLIT
analyses, the winds in the Lemoore area
could not have carried sufficient
quantities of particulate matter to
Bakersfield to cause exceedances of the
PM–10 NAAQS. In order to evaluate
Earthjustice’s HYSPLIT analyses, EPA
also performed computer simulations
using the HYSPLIT model. However, we
took a different approach because we
believe that Earthjustice’s HYSPLIT
analyses do not represent a
comprehensive depiction of the dust
event.18
While Earthjustice used trajectories
starting at zero meters in height and
took a two-dimensional approach in
assessing the wind event, we took a
more appropriate three-dimensional
approach. The EPA approach recognizes
that the dust did not stay at zero meters
in height above ground but instead
18 EPA does agree in part with the Jan Null
declaration (EC, Exhibit H) in which he states that
the data used by the District in the HYSPLIT model,
EDAS (ETA Data Assimilation System) meso-scale
data, is too coarse to account fully for both the
complex terrain in and around the SJV and for the
rfrederick on PROD1PC67 with RULES
close proximity of the stations being examined.
However, Earthjustice and EPA also used the EDAS
meso-scale data which are of sufficient resolution
to account for the general overall wind flow in the
southern SJV and thus provide a coarse simulation
of wind trajectories within the Valley.
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
Corcoran
conc. Alpaugh WS*/WD
(µg/m3)
180 4.4/WNW ..................................
mixed up higher into the atmosphere
where stronger winds occurred that
caused the transport to be faster than
Earthjustice’s HYSPLIT analyses
indicated. For September 22 and
October 25, 2006, for the morning start
times, EPA ran trajectories at three
heights: 10 meters, 100 meters and 250
meters. These heights were used to
approximate the transport from near the
surface, near the middle and near the
top of the mixed layer 19 as shown by
the HYSPLIT model.
On September 22, 2006, based on the
meteorological data and our HYSPLIT
runs, the high winds that began in the
Lemoore area around 6 a.m. PST eroded
and then transported dust that started to
affect the PM–10 concentrations
measured in the Corcoran area by 7 a.m.
PST. See Figure 1, ‘‘Forward
Trajectories at 10, 100, & 250 meters,
Lemoore Area to Corcoran, September
22, 2006, 6 a.m. to 8 a.m. PST.’’20 From
Corcoran and eastward, some of the dust
may have been transported more
towards the Sierra foothills. See Figure
2, ‘‘Forward Trajectories at 250 meters,
Lemoore to Corcoran and Bakersfield,
September 22, 2006, 6 a.m. to 1 p.m.
PST.’’ West of Corcoran, the dust was
transported southward towards
Bakersfield, beginning to affect that area
between the hours of 12 p.m. and 1 p.m.
PST. See Figure 2 and Figure 3,
‘‘Forward Trajectories at 10, 100, & 250
meters, Lemoore Area to Bakersfield,
September 22, 2006, 6 a.m. to 1 p.m.
PST.’’ Based on hourly PM–10 values,
the peak concentration of dust, 725 µg/
m3, occurred at about 10 a.m. PST in
Corcoran and a PM–10 value of 294 µg/
m3 occurred at about 3 p.m. PST in
19 The mixed layer is the unstable layer of the
atmosphere in direct contact with the surface of the
Earth. The daytime mixed layer is characterized by
vigorous turbulent mixing. This means that air or
dust laden air at any height within the mixed layer
can impact the surface due to the mixing caused by
turbulence.
20 The EPA Figures referenced in this final rule
are available in the docket for this rulemaking
action and are listed in section II.C. below.
PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
Bkrsfld Meadow Airport Bkrsfld conc.
WS/WD (µg/m3)
3/NW ...................................... 403
Bakersfield. See Table 4 above. See also
our response to comment 21 below.
On October 25, 2006, the scenario was
similar to September 22, 2006. EPA’s
HYSPLIT runs support a finding that the
high winds that began in the Lemoore
area around 5 a.m. PST eroded and then
transported dust that started to affect the
PM–10 concentrations measured in the
Corcoran area by about 6 a.m. PST. See
Figure 4, ‘‘Forward Trajectories at 10,
100, & 250 meters, Lemoore Area to
Corcoran, October 25, 2006, 5 a.m. to 7
a.m. PST.’’ From Corcoran and
eastward, some of the dust may have
been transported more towards the
Sierra foothills. West of Corcoran, the
dust was transported southward
towards Bakersfield, starting to affect
that area between 11 a.m. and 12 p.m.
PST. See Figure 5, ‘‘Forward
Trajectories at 250 meters, Lemoore to
Corcoran and Bakersfield, October 25,
2006, 5 a.m. to 11 a.m. PST’’ and Figure
6,’’ Forward Trajectories at 10, 100, &
250 meters, Lemoore Area to
Bakersfield, October 25, 2006, 5 a.m. to
11 a.m. PST.’’ The peak concentration of
dust in Corcoran occurred around 11
a.m. PST with a PM–10 value of 794 µg/
m3. The peak concentration of dust in
Bakersfield was more obscure with a
peak at about 5 p.m. PST and a PM–10
value of 416 µg/m3. See Table 5 above.
EPA believes that our HYSPLIT
analyses depict more accurately than
Earthjustice’s runs the windblown dust
events of September 22 and October 25
because, in addition to accounting for
the various heights above ground level,
we accounted for the wind flows within
the Valley more comprehensively. We
recognized that the winds over the
eastern portion of the Valley tended to
move towards the east, winds over the
western portion of the valley tended to
move more towards the south, and that
there was a transition area in between
where winds moved southeast directly
from the Lemoore area to Bakersfield.
See Figures 2 and 5 above. Thus we
believe that our HYSPLIT analyses were
sufficient to provide a general overview
of the direction and speed of dust
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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
transport in the San Joaquin Valley and
support the contention of dust transport
from the Lemoore area to the Corcoran
and Bakersfield areas. Our analyses are
also in general agreement with the
measured wind data provided by the
State which do account for the complex
terrain of the Valley.
We note again that our concurrence
with the State’s causal connection
demonstration is based on the
meteorological data for September 22
and October 25, 2006 discussed above.
We believe the HYSPLIT model
supports this demonstration by showing
that the winds were of the appropriate
intensity and direction to move a plume
of dust from the central SJV to the
Bakersfield areas on those days.
Comment 12: Earthjustice claims that
the exceedances in the SJV cannot be
deemed to be in excess of normal
historical fluctuations because they
occur regularly and at a similar level
every fall and are therefore no different
from the exceedances used to designate
the SJV nonattainment in the first place.
Thus Earthjustice believes there are no
‘‘unusual activities’’ as EPA states,
because the exceedances at issue here
were caused by the same dust-
generating activities that cause
exceedances every year.
Response 12: As we discussed in our
proposed rule at 72 FR 49052, for EPA
to concur with a state’s claim that an
exceptional event caused an
exceedance, the state must show that
the event is associated with
concentrations that are beyond the
normal historical fluctuations. See 40
CFR 50.14(c)(3)(iii)(C).
When the SJV was designated
nonattainment for PM–10 in 1991 by
operation of law (56 FR 11101, March
15, 1991), the District had not
implemented the BACM for PM–10 that
are currently in place. Since 1991, the
State of California and the SJVAPCD
have adopted many rules and rule
amendments that have led to significant
reductions in PM–10 and oxides of
nitrogen (NOX) emissions. These rules
include, as discussed above, BACM for
fugitive dust sources such as unpaved
and paved roads, vacant lots,
construction sites, etc. (Regulation VIII)
and BACM for agricultural sources (Rule
4550—Conservation Management
Practices). See Section 8, ‘‘Natural Event
Documentation, Corcoran, Oildale and
Bakersfield, California, September 22,
2006,’’ April 20, 2006. These BACM
rules for fugitive dust and agricultural
rfrederick on PROD1PC67 with RULES
sources were adopted and implemented
in mid- to late 2004. See 71 FR 8461 and
71 FR 7683. Given the vast changes in
regulatory requirements for PM–10
sources, the dust-generating activities in
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
the early 1990’s are not, as Earthjustice
suggests, comparable to those after the
full implementation of BACM in the
SJV. Therefore we do not believe that
the September 22 and October 25,
2006 21 exceedances are the result of the
same type of dust-generating activities
that caused the area to originally
become nonattainment. Nor do we
believe that Earthjustice has
substantiated its claim that they are.
We originally evaluated whether the
September 22 and October 25, 2006
exceedances exceeded normal historical
fluctuations in our proposed rule. See
72 FR at 49053 and 49056. In response
to Earthjustice’s comment on the
proposed rule that this EER criterion
had not been satisfactorily demonstrated
by the State’s documentation, EPA
undertook a further analysis of the data
collected at the sites that exceeded the
24-hour PM–10 NAAQS on September
22, 2006 (Corcoran, Bakersfield-Golden
State Highway and Oildale) and October
25, 2006 (Corcoran and Bakersfield-
Golden State Highway). EPA included
data from 1993 to 2006 in our
analysis.22 Our statistical analysis
shows the annual percentile values of
the data from each of the three sites. In
the preamble to our EER, we state that
a comparison of the exceedance data to
the historical 95th percentile values is
appropriate for determining the level of
evidence or documentation a state needs
to provide in order for EPA to concur
with its flagging request. Extremely high
concentrations relative to the 95th
percentile values would require a lesser
amount of documentation to
demonstrate that an event affected air
quality. See 72 FR at 13569.
For Corcoran, when we examine all
data collected since 1993,23 it is clear
that the 95th percentile values have
consistently been below the level of the
24-hour PM–10 NAAQS and since 1999
the Corcoran site has not recorded a
95th percentile value greater than 117
21 With respect to the exceedances at the Santa
Rosa Rancheria, in the proposed rule EPA showed
that the concentrations measured during the
construction activity were in excess of normal
historical fluctuations and that after completion of
the paving project average PM–10 concentrations
dropped by more than 50 percent. 72 FR at 49062.
22 1993 was chosen as the starting point for data
analysis because that is the year that the SJV was
classified as a serious PM–10 nonattainment area.
23 From 1993 through 1998, the Corcoran site
collected PM–10 data on a once every sixth day
schedule using a Federal Reference Method (FRM)
monitor. Beginning in 1999 the Corcoran PM–10
site has been collecting data on a once every third
day schedule using FRM monitors. In October 2006
the SJVAPCD began operating a continuous monitor
designated as a Federal Equivalent Method (FEM)
monitor at the site to provide everyday PM–10 data
to the public. The State and SJVAPCD report all
data from these monitors to the EPA’s AQS
database.
PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14701
µg/m3. The 95th percentile value
recorded at Corcoran in 2006 was less
than 100 µg/m3. Therefore, our analysis
of all the data collected at Corcoran over
the past 14 years indicates that the
September 22 and October 25, 2006
exceedances were clearly beyond the
normal range of annual concentrations
recorded at this site. See Figure 7,
‘‘Annual Peak Day PM10 Concentrations
at Corcoran.’’
As with the Corcoran data, we
performed a statistical analysis of the
data collected at the Bakersfield-Golden
State Highway site using data from 1993
to 2006 and calculated the annual
percentile values. From this analysis it
is clear that the 95th percentile values
at Bakersfield were consistently less
than the level of the 24-hour PM–10
NAAQS. In 2006 the 95th percentile
value at Bakersfield-Golden State
Highway was 101 µg/m3. Therefore our
analysis of the Bakersfield-Golden State
Highway data shows that the September
22 and October 25, 2006 exceedances
were beyond the normal range of data
recorded at this site during the past 14
years. See Figure 8, ‘‘Annual Peak Day
PM10 Concentrations at Bakersfield.’’
Finally, our analysis of the data
collected at Oildale also shows that the
exceedance recorded at that site on
September 22, 2006 was outside the
normal range of historical values. As
with the other two sites discussed
above, the 95th percentile values
recorded at Oildale during the past 14
years were consistently below the level
of the NAAQS and the 95th percentile
value in 2006 was 111 µg/m3. Again, our
analysis of the Oildale data indicates
that the September 22, 2006 exceedance
recorded at this site was outside the
normal historical fluctuation of data for
the past 14 years. See Figure 9, ‘‘Annual
Peak Day PM10 Concentrations at
Oildale.’’
Therefore, our analysis of all the
annual data from 1993 through 2006
shows that the September 22 and
October 25, 2006 exceedances are in
excess of normal fluctuations.
To address Earthjustice’s specific
concern that these exceedances occur
routinely in the fall months, defined by
Earthjustice as the months of
September, October and November,24
we performed the same statistical test
on the Corcoran data using only those
values recorded during those months.
From this test it is clear that the 95th
percentile values for all years since 1998
do not exceed the level of the 24-hour
PM–10 NAAQS. The highest 95th
percentile value since 1998 was a 146
µg/m3 recorded in 2003. Again, this
24 EC at 15.
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 14702 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
analysis demonstrates that the
September 22 and October 25, 2006
exceedances recorded in Corcoran, even
when we use seasonally adjusted data,
were in excess of the normal historical
fluctuations. See Figure 10, ‘‘Annual
Peak Fall Day PM10 Concentrations at
Corcoran.’’
At the Bakersfield monitor, 95th
percentile values for the fall months
have been lower than the level of 24-
hour PM–10 NAAQS since 2000, with
the highest 95th percentile value
recorded in that year at 145 µg/m3. In
2006, the fall months’ 95th percentile
value was 100 µg/m3. These values
show that the exceedances measured on
September 22 and October 25 were
outside the historical fluctuation of data
for the fall months. See Figure 11,
‘‘Annual Peak Fall Day PM10
Concentrations at Bakersfield.’’
Finally for Oildale, our analysis of the
fall 95th percentile values shows that
since 1996 the 95th percentile values
have not exceeded the level of the
NAAQS and 1996 had the highest 95th
percentile value (138 µg/m3), with the
exception of the September 22, 2006
concentration of 162 µg/m3. Even
though the 95th percentile value in the
fall of 2006 exceeded the level of the
NAAQS, when we look at the historical
fall data for Oildale this value does
stand out as outside the normal range.
See Figure 12, ‘‘Annual Peak Fall Day
PM10 Concentrations at Oildale.’’
Therefore, our analysis of the data
from 1993 through 2006 for the months
of September through November shows
that the September 22 and October 25,
2006 exceedances were in excess of
normal fluctuations.
Comment 13: Earthjustice argues that
EPA cannot make the required ‘‘but for’’
showing for the locations other than the
SRR because either the model shows
that the winds did not blow toward the
monitors or the monitoring data show
that the standard was being exceeded
even before the alleged dust-laden
winds arrived.
Response 13: With respect to the
September 22, 2006 exceedance, see our
responses to comments 10, 11, 16 and
21. With respect to October 25, 2006 see
our responses to comments 10, 11 and
43. We also discussed the ‘‘but for’’
demonstration included in the State’s
documentation in detail in our proposed
action. See 72 FR 49053, 49056–49057.
Comment 14: Earthjustice also argues
that to make its ‘‘but for’’ showing EPA
asserts that no ‘‘unusual activities’’
rfrederick on PROD1PC67 with RULES
occurred during the exceedance period
and implies that something ‘‘extra’’
must have happened which would
mean that an area would either have
violations every day or never and that
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
EPA would then have to conclude that
unless an area violates every day, any
violation must be the product of some
exceptional, nonrecurring event.
Earthjustice believes that EPA’s reliance
on this type of argument to make the
‘‘but for’’ claim is arbitrary and
capricious.’’
Response 14: Earthjustice takes out of
context EPA’s consideration of the fact
that there were no other unusual
activities at the time of the September
22 and October 25, 2006 exceedances to
draw some extreme conclusions, such as
that the Agency would have to conclude
‘‘that unless an area violates every day,
any violation must be the product of
some exceptional nonrecurring event.’’
In this connection, Earthjustice
misunderstands EPA’s application of
the weight of evidence approach to the
‘‘but for’’ demonstration. In the
preamble to the EER, EPA explained
that it would use a ‘‘weight of evidence-
based approach to demonstrate that
there would not have been an
exceedance or violation but for the
event.’’ 72 FR at 13570–13571. EPA
explained that through analyses it was
possible to demonstrate that an
exceedance would not have occurred
but for the event; however, this analysis
does not require a precise estimate of
the estimated air quality impact from
the event. 72 FR at 13570.
In applying this weight of evidence
approach, EPA considered the totality of
circumstances surrounding the events
for the exceedance days. EPA included
in its consideration, an evaluation of the
coarse particles, information about
geologic dust, values representing
excess geologic contributions,
comparison of ‘‘adjusted’’ PM–10 values
with typical average concentrations
during similar periods, information
about control measures, readings on
days before and after the exceedance
days, and whether any unusual or out
of the ordinary activities occurred on
such days. See 72 FR at 49053. Monitor
readings on the days before and after the
event days indicated no violations. EPA
therefore looked to see if on the specific
event days there were activities that
were different or unusual as compared
to the days when there were no
exceedances in order to rule those in or
out as contributing to the exceedance.
Contrary to Earthjustice’s contention
that any time there is a violation EPA
would conclude that it is due to some
exceptional nonrecurring event, the lack
of unusual activities was just one of the
factors that EPA considered in reaching
its determination based on the weight of
evidence analyses. Thus, EPA’s
consideration of whether or not there
were unusual activities in this context is
PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
neither arbitrary nor capricious as
Earthjustice claims.
2. Comments Specific to September 22,
2006—Corcoran, Bakersfield and
Oildale
Comment 15: Earthjustice claims that
in order to show that an event has
affected air quality, a demonstration
must be made that the event ‘‘caused a
specific air pollution concentration’’
and that the data to be waived are
directly due to the event. Earthjustice
asserts that the District did not provide
evidence that demonstrates how enough
particulate matter pollution could have
been generated in and transported from
one remote area of the SJV to multiple
monitors in distant locations within the
time period of the event. In this regard,
Earthjustice states that while the District
cites a study that allegedly establishes a
threshold at which wind begins to erode
PM (sustained winds of 18 mph or gusts
of 22.4 mph), there is no basis for the
claim espoused by both the District and
EPA that winds below this threshold
velocity can then transport particulate
matter pollution long distances. To
support this assertion Earthjustice cites
EPA’s recent rulemaking (71 FR 61144,
61146, October 17, 2006) establishing
new PM standards in which EPA
concluded that ‘‘thoracic coarse
particles generally deposit rapidly on
the ground or other surfaces and are not
readily transported across urban or
broader areas.’’
Response 15: Earthjustice states that
in order to show that an event affected
air quality the State must quantify the
amount of PM–10 initially generated at
a source location. In our proposed rule
we stated that this criterion (affecting air
quality) is met by establishing that the
event is associated with a measured
exceedance in excess of normal
historical fluctuations, including
background, and there is a clear causal
connection between the event and the
exceedance. 72 FR at 49051. We also
discussed how these criteria were met.
Id. at 49051–49052.
Earthjustice seems to be suggesting
that in order to meet the criterion
‘‘affects air quality’’ the State should
have used an air quality model such as
AERMOD or CalPuff to show the
behavior of fugitive dust. In other
words, Earthjustice is asking for a
modeling demonstration that would
show, quantitatively, that a given
amount (either in the form of an
emission rate or initial ambient
concentrations at the source regions)
can produce a particular concentration
at a receptor point (e.g., monitoring site
location). This type of modeling, at the
scale Earthjustice is suggesting, is not an
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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
appropriate tool for use in this type of
application because it cannot be
performed with any degree of accuracy.
The State included in its
documentation the results of a study
that determined the threshold wind
speed needed to erode geologic material
and entrain the resulting particles into
the atmosphere.25 Earthjustice states
that there is no basis for the claim that
lower wind speeds could transport dust
long distances.
While the State did not provide
information from a specific study to
demonstrate wind speeds sufficient to
transport PM–10 suspended in the
atmosphere, EPA believes it is
reasonable to conclude, as the State did,
that if an 18 mph wind is sufficient to
erode and entrain coarse particles into
the atmosphere, a lower wind speed is
sufficient to keep particles already
entrained in the atmosphere suspended,
and to subsequently transport them
considerable distances. To erode
geological material on the ground and
cause it to be suspended in the air,
winds must have enough kinetic energy
to overcome the attractive forces
between particles, in addition to
gravitational forces. High winds also
tend to cause large particles to collide
with each other, making them break
apart and become more likely to be
lifted up. For particles that have already
been lifted well above ground level,
winds need only have enough
occasional upward component (due to
turbulence) to overcome gravitational
settling. Also, winds aloft may have
been stronger (and had more turbulence)
than suggested by the ground based
measurements.
As presented in Table 3 of the State’s
documentation, the wind speeds
between Lemoore and Corcoran,
measured at Corcoran, reached a
maximum speed of 11 mph between
hours 6 and 12. See ‘‘Natural Event
Documentation, Corcoran, Oildale and
Bakersfield, California, September 22,
2006,’’ San Joaquin Valley Unified Air
Pollution Control District, April 20,
2007. Winds in the region between
Corcoran and Bakersfield, measured at
TABLE 6.—SEPTEMBER 22, 2006 MORNING WIND SPEEDS AT METEOROLOGICAL MONITORING STATIONS IN THE CENTRAL
SAN JOAQUIN VALLEY
Time
Tranquility
(a.m.
(hour/gust)
PST)
6:20 ........ 9/12 ..................
rfrederick on PROD1PC67 with RULES
6:30 ........ 10/10 ................
25 Subtask Memorandum, ‘‘3.3 How Well Do
Measurements Characterize Critical Meteorological
Features,’’ Dave Bush, T & B Systems, August 24,
2004.
VerDate Aug<31>2005 15:13 Mar 18, 2008
Alpaugh and Allensworth State Park,
reached 16 mph and 15 mph,
respectively, between hours 10 and
16.26 EPA believes that wind speeds of
this intensity were sufficient to
transport PM–10 from the central SJV to
the Bakersfield area.
Regarding Earthjustice’s reference to
the PM coarse NAAQS final rule, EPA
was noting the difference in expected
transport distances for PM–2.5 versus
PM coarse. Note that we stated that
coarse particles generally deposit
rapidly on the ground or other surfaces
and are not readily transported across
urban or broader areas. 71 at 61146.
When comparing PM–2.5 and PM coarse
in urban settings it is true that PM–2.5
is a more regional pollutant and can
spread over great distances. PM coarse
particles in urban areas, under
meteorological conditions that do not
involve high winds, generally are
considered more of a localized pollutant
problem. The statement cited by
Earthjustice was not meant to imply that
under windy conditions PM coarse
particles would not be subject to
transport. The exceedances that
occurred in both Corcoran and the
Bakersfield area on September 22 and
October 25, 2006 were the result of
windblown and transported dust from a
predominantly rural area.
Comment 16: Earthjustice provides a
chart that it states demonstrates the
range of sustained wind speeds in key
areas of the central and southern SJV on
September 22, 2006 with corresponding
hourly PM–10 concentrations. With
respect to this chart, Earthjustice, citing
EPA Raw Data Reports, asserts the
following:
* * * there was a period of a few hours
where the alleged wind speed threshold was
exceeded at the Lemoore Naval Air Station
monitoring site, which is located northwest
of the city of Lemoore. The maximum
sustained wind speeds ranged from 21 to 29
miles per hour between the hours of 7 a.m.
and 11 a.m., and again exceeded the alleged
threshold at 1 p.m. The maximum peak gusts
(i.e., momentary bursts of wind) recorded at
the Lemoore NAS ranged from 30–40 miles
per hour between the hours of 9 a.m. and 11
a.m. However, just 10 miles southeast of the
Selma Lemoore Kettleman Hills
(hour/gust) (hour/gust) (hour/gust)
6/7 .................... ND ....................... ND .........................
5/9 .................... ND ....................... ND .........................
26 Wind speeds at Allensworth State park reached
20 mph and 35 mph at hours 8 and 9. This indicates
that while the area around Lemoore was identified
as the source for the PM–10 on September 22, 2006,
Jkt 214001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14703
Lemoore NAS at the Santa Rosa Rancheria,
sustained winds never got any higher than
14.1 miles per hour * * *. In Corcoran,
sustained winds reached only 9.6 miles per
hour, and Bakersfield experienced nothing
stronger than 7.8 mile-per-hour sustained
winds * * *. None of the winds experienced
outside of northwest Lemoore were capable
of eroding soils and so none of these areas
could have contributed any wind-entrained
dust to the PM–10 concentrations recorded
on September 22, 2006.
Response 16: As discussed in our
response to comment 10, the Lemoore
wind speeds included in the State’s
documentation were reported in PDT
and not in PST. The Corcoran and
Bakersfield PM–10 hourly concentration
data were reported in PST which means
that the winds in Lemoore began to
exceed the threshold wind speed at 6
a.m. PST. The times for the wind speed
data in the Earthjustice chart need to be
adjusted accordingly.
While we do not have monitoring data
at every location, contrary to
Earthjustice’s comment, there are data
that show the threshold wind speed was
exceeded not only in the Lemoore area
but at other locations in the central and
southern SJV on September 22, 2006.
The Lemoore station showed the most
intense wind speeds in the area and the
data are used to represent the conditions
in the area centered around Lemoore.
The nearest meteorological station to
Lemoore is the Santa Rosa Rancheria
monitoring station, located about 11
miles SE of Lemoore. However, the fact
that the winds at the SRR did not
exceed the threshold velocity does not
prove that there were no wind speeds
above the threshold between Lemoore
and Corcoran. We obtained wind data
from other meteorological stations in the
central SJV such as Tranquility (30
miles NW of Lemoore), Selma (20 miles
NE of Lemoore), Kettleman Hills (20
miles SSW of Lemoore), Hanford
Municipal Airport (17 miles east of
Lemoore), Hanford (18 miles east of
Lemoore) and Allensworth State Park
(43 miles SW of Lemoore). Wind speed
data from these sites are presented in
the Table 6 below.
Allensworth
Hanford Airport Hanford
State Park
(hour/gust) (hour/gust)
(hour)
ND .................... 4/10 .................. ND
ND .................... 5/8 .................... ND
additional PM–10 was likely generated by winds in
the region between Corcoran and Bakersfield.
19MRR1
 14704 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations

TABLE 6.—SEPTEMBER 22, 2006 MORNING WIND SPEEDS AT METEOROLOGICAL MONITORING STATIONS IN THE CENTRAL
SAN JOAQUIN VALLEY—Continued
Time Allensworth
Tranquility Selma Lemoore Kettleman Hills Hanford Airport Hanford
(a.m. State Park
(hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust) (hour/gust)
PST) (hour)

6:45 ........ 8/12 ..................
7:00 ........ 9/11 ..................
7:20 ........ 13/12 ................
7:35 ........ 13/14 ................
7:45 ........ 14/14 ................
8:05 ........ 15/19 ................
8:15 ........ 13/19 ................
8:30 ........ 21/20 ................
8:45 ........ 23/23 ................
9:00 ........ 20/23 ................
9:20 ........ 18/27 ................
9:35 ........ 21/25 ................
9:45 ........ 17/25 ................
10:05 ...... 17/24 ................
10:15 ...... 17/26 ................
10:35 ...... 17/23 ................
10:50 ...... 14/23 ................
11:05 ...... 16/21 ................
11:15 ...... 12/22 ................
11:30 ...... 14/20 ................
11:35 ...... 15/23 ................
11:45 ...... ND/23 ...............
11:50 ...... ND/23 ...............
12:00 ...... ND/16 ...............
Source: Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowest/.
ND—No Data available.
5/7 .................... ND ....................... ND ......................... ND .................... 5/8 .................... 3
6/9 .................... 21 ........................ 16/24 ..................... 17/ND ............... 5/7 .................... 6
7/6 .................... ND ....................... ND ......................... ND .................... 5/11 .................. 7
7/7 .................... ND ....................... ND ......................... ND .................... 5/11 .................. ND
8/9 .................... 28 ........................ 17/24 ..................... 15/ND ............... 7/10 .................. 38
10/10 ................ 26 ........................ ND ......................... ND .................... 8/12 .................. 5
12/10 ................ 31 ........................ ND ......................... ND .................... 9/12 .................. 20
14/14 ................ 28/35 ................... ND ......................... ND/26 ............... 9/17 .................. 21
8/16 .................. ND/35 .................. ND ......................... ND .................... 7/18 .................. 9
12/15 ................ 29/38 ................... 18 .......................... 15/ND ............... 5/21 .................. 2
12/18 ................ 24/40 ................... ND ......................... ND .................... 4/18 .................. 35
9/15 .................. ND ....................... ND ......................... ND .................... 5/16 .................. 6
6/16 .................. ND/37 .................. ND ......................... ND .................... 8/18 .................. 2
9/13 .................. 23/ND .................. 20/27 ..................... 10/ND ............... 7/16 .................. 15
5/13 .................. ND ....................... ND ......................... ND .................... 4/11 .................. 3
7/7 .................... ND ....................... ND ......................... ND .................... ND/13 ............... 9
8/12 .................. ND/30 .................. ND ......................... ND .................... ND/13 ............... 0
7/7 .................... 17/ND .................. 17/32 ..................... 10/ND ............... ND/11 ............... ND
7/12 .................. ND ....................... ND ......................... ND .................... ND .................... 8
1/9 .................... ND ....................... ND ......................... ND .................... ND .................... 10
ND/8 ................. ND/24 .................. ND/24 .................... ND .................... ND .................... ND
6/9 .................... ND ....................... ND ......................... ND .................... ND .................... 0
ND/5 ................. ND ....................... ND ......................... ND .................... ND .................... ND
0 ....................... 14/ ....................... 17/ND .................... 10/ND ............... ND .................... ND

Earthjustice includes data in its chart
only from locations which had recorded
lower wind speeds on the morning of
September 22, 2006. We addressed the
lower intensity winds at Corcoran and
Bakersfield in our proposed rule, and
the fact that the winds between Lemoore
and Corcoran and Bakersfield were
capable of keeping in suspension the
particulate matter that the winds at
Lemoore had suspended. See 72 FR at
49052. Earthjustice does not include
data from the other meteorological sites
in the general area of the central SJV
that show winds that were comparable
to those recorded at the Lemoore Naval
Air Station meteorological site. Data
from these other meteorological sites, as
shown above, indicate that nearly all
recorded hourly wind speeds on
September 22, 2006 were in excess of
the threshold wind speed of 18 mph
between 6 a.m. and 12 noon PST.
Recorded gusts at some of these sites
were also in the 20–30 mph range
during the morning hours. It is likely
that there were other places along the
path from Lemoore to Bakersfield that
experienced wind speeds above the
threshold velocity but there were no
wind instruments to document it.
rfrederick on PROD1PC67 with RULES
data, wind speeds in the central SJV on
the morning of September 22, 2006 were
high not just in Lemoore but throughout
this portion of the Valley. Moreover, as
pointed out above, even if the winds
outside of Lemoore were not capable of
eroding soil, the winds between
Lemoore and Corcoran and Bakersfield
were capable of keeping in suspension
the particulate matter that the winds in
the area around Lemoore had entrained.
Comment 17: Earthjustice states that
no attempt was made to explain how
high winds that began at 7 a.m. on
September 22, 2006 caused violating
PM–10 levels at a monitor 25 miles
away starting at 6 a.m.
Response 17: See responses to
comments 10 and 11.
Comment 18: Earthjustice asserts that
EPA failed to demonstrate that the
concentrations measured on September
22, 2006 could have been caused by the
wind-generated erosion of soils from
agricultural and industrial sources in
the Lemoore area. Earthjustice states
that all EPA offered as evidence is a
study establishing a threshold velocity
at which soil erosion may begin to
occur, but that EPA has not analyzed
whether the study’s threshold wind
analyze factors pertinent to fugitive dust
generation such as the soil class and
erodibility in the Lemoore area, the
types and stages of crop cover present
at the time the winds occurred, the
specific activities occurring in the area
that contributed to PM–10
concentrations, or the specific measures
employed by sources to reduce or
prevent wind erosion. Earthjustice
maintains that this information should
have been evaluated to help determine
whether or not the winds in Lemoore
could have realistically generated the
levels of PM–10 observed on September
22, 2006.
Response 18: EPA has demonstrated
that the concentrations measured on
September 22, 2006 were caused by
windblown dust generated in the
Lemoore area. As stated above in
response to comment 10, the State’s
documentation included a threshold
wind speed needed to erode soils and
entrain the resulting particulate matter
in the atmosphere. This wind speed
study was part of the 2002 CRPAQS
Study. The wind speed study was
performed in Angiola, California, which
is located about 8 miles SW of Corcoran
and 34 miles SW of Lemoore. Based on

Therefore, Earthjustice’s statement speed is appropriate for the Lemoore the soil map included in the State’s
that none of the winds experienced area. Earthjustice argues that the documentation, the soil type in Angiola
outside of northwest Lemoore were scouring of soil by winds depends on is the same as those in Lemoore and
capable of eroding soils is simply not much more than simply the speed of the Corcoran. See ‘‘Natural Event
true. Based on actual recorded wind wind and that EPA has not attempted to Documentation, Corcoran, Oildale and

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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
Bakersfield, California, September 22,
2006,’’ San Joaquin Valley Unified Air
Pollution Control District, April 20,
2007 at 76. Thus the threshold velocity
at which soil erodes identified in the
study is appropriate for the Lemoore
and Corcoran areas.
Reviewing the graphic in the State’s
documentation, we see that crop types
throughout the areas in question are
predominantly field crops. Id. at 77.
Other sources in this rural portion of the
SJV could include, but are not limited
to, agricultural activities, unpaved roads
and construction activity. These types of
sources are all subject to BACM. Id. at
32–33. These BACM are part of the
approved serious area PM–10 plan for
the SJV. See 69 FR 30006. Therefore,
EPA did in fact evaluate the principal
factors identified by Earthjustice,
including wind speed, sources and
whether they were controlled. See also
our proposed rule at 72 FR 49051 and
49053.
Comment 19: Earthjustice states that
EPA must find that the documentation
demonstrates a clear causal relationship
between a measured exceedance and the
alleged event. In this respect,
Earthjustice, relying on a declaration of
Jan Null (Null declaration), argues that
the District’s documentation concocts a
barely-plausible story of severe scouring
by winds not much greater than the
alleged minimum velocity for
entrainment, followed by rapid
transport from one remote west-Valley
location (Lemoore) down to Corcoran,
where huge amounts of particulate
matter were deposited on the monitor in
order to cause violations, yet enough
pollution was kept entrained by much
slower winds to continue on for 60
miles down to Bakersfield and Oildale
in substantial enough quantities to also
cause violations in those locations.
Earthjustice concludes that this ‘‘story’’
is unsupported by reliable
meteorological evidence.
Response 19: As discussed in EPA’s
proposed rule (72 FR 49046) and in
responses to comments 11 and 16, the
State did provide reliable
meteorological data to support its
demonstration that winds in the central
and southern SJV were of the
appropriate intensity and direction to
cause and transport fugitive dust to the
affected monitors at Corcoran and
Bakersfield. EPA relied on these data, as
well as other publicly available data, to
concur with the State’s request to find
that the exceedances of the NAAQS on
rfrederick on PROD1PC67 with RULES
September 22, 2006 were due to an
exceptional event.
Furthermore, Earthjustice
mischaracterizes the data used to
support this action. It is not the case
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
that winds were not much greater than
the threshold wind speed of 18 mph;
rather they were at times significantly
higher and widespread in the central
SJV. See Table 6 above. Winds between
Lemoore and Corcoran were of the
appropriate direction and intensity to
transport windblown dust to Corcoran,
25 miles away. Winds in the areas south
of Corcoran and north of Bakersfield
were of sufficient intensity to transport
suspended PM–10 the 55 miles from
Corcoran to Bakersfield.27 The timing,
direction and intensity of the winds and
hourly PM–10 concentrations at
Bakersfield all support the
demonstration of transport presented by
the State. Based on the weight of
evidence presented, EPA has concluded
the State’s documentation shows a clear
causal relationship between the wind
event and the exceedances in contrast to
the ‘‘barely-plausible story’’ Earthjustice
alleges.
Comment 20: Earthjustice states that
the Figure 1 in the Null declaration
shows that winds originating in
Lemoore at 7 am, which is when the
data in the record show elevated winds
began, may have traveled to Corcoran,
arriving around noon. However,
Earthjustice states that because the
Corcoran monitor began reading
exceedances of the PM–10 standard at 6
a.m., EPA cannot claim the winds
caused the Corcoran exceedance.
Response 20: See our responses to
comments 10 and 11.
Comment 21: Earthjustice claims that
the Figures 1, 2 and 3 in the Null
declaration show that the winds that did
reach Corcoran proceeded northeast
toward the Sierra foothills and did not
move in the direction of Bakersfield.
Response 21: As discussed in our
response to comment 11 above, EPA
assumed a more realistic three-
dimensional approach to using the
HYSPLIT model than Earthjustice’s two-
dimensional approach. We also used a
small range of starting points for our
HYSPLIT runs, recognizing that simply
because the available Lemoore
meteorological data were from a single
point at the Lemoore Naval Air Station,
the data from that point represent
meteorological conditions over a wider
area. See footnote 11 above.
Based on our more realistic inputs, we
initiated three HYSPLIT runs, one
27 There may have been some deposition and
dispersion of the dust plume, as discussed in our
proposal at 72 FR at 49052, but enough material
remained suspended to impact the Bakersfield area.
The fact that the 24-hour average PM–10
concentrations in Bakersfield and Oildale were 157
µg/m3 and 162 µg/m3 compared to the 215 µg/m3
recorded at Corcoran certainly indicates that some
deposition or dispersion occurred along the 55 mile
pathway.
PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14705
starting half way between Lemoore and
Kettleman City (about 11 miles
southwest from Lemoore), one at
Lemoore, and one about 11 miles
northeast of Lemoore. EPA chose these
two different starting locations outside
of Lemoore because, based on the
trajectory model, they more precisely
depict the potential source regions for
Corcoran, which is more east than south
of Lemoore, and Bakersfield, which is
more south than east of Lemoore. Since
the Lemoore station can be considered
representative of a larger area than
Lemoore itself, the starting locations are
considered part of the Lemoore area and
dust was entrained from that entire area.
Also, in support of that assumption,
Hanford, which is about 15 miles east
northeast of Lemoore, and Kettleman
Hills, about 22 miles southwest of
Lemoore, reported wind speeds above
the threshold for the entrainment of
dust.
The results of our HYSPLIT runs
show that from Corcoran and eastward,
some of the dust may have been
transported more towards the Sierra
foothills, but west of Corcoran the dust
was transported southward towards
Bakersfield. See Figures 1, 2, and 3.
These results are in general agreement
with Jan Null’s statement that:
* * * winds out of Kettleman City
continued down the western-most side of the
San Joaquin Valley, essentially following the
contours of the Coastal Range. This is not
unusual behavior for winds on the west side
of the Valley, which are generally faster than
winds in the rest of the Valley due to the
orientation of the Sacramento and San
Joaquin Valleys.
Null declaration at 11. Between
Lemoore and Kettleman City, the winds
were in transition from heading towards
the east near Corcoran and following the
Coastal Range as happened around
Kettleman City. This caused the winds
in a portion of that transition area to go
in a direct path towards Bakersfield. In
contrast to EPA’s inputs to the HYSPLIT
model, the inputs used by Jan Null did
not reflect the wind flow structure in
the Valley and did not demonstrate a
comprehensive view of the
meteorological events that took place
during that day.
Comment 22: Earthjustice believes
that EPA was ‘‘dazzled’’ by the District’s
use of the HYSPLIT model even though
the model is not an appropriate tool for
post hoc simulation of localized
meteorology and EPA did no analyses of
its own. Earthjustice further states that
the District’s single run does not show
the connection between Lemoore winds
and the violating monitors that EPA
apparently thinks it does.
19MRR1
 14706 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
Response 22: See our response to
comments 10, 11 and 21.
Comment 23: Earthjustice maintains
that the winds just south of Lemoore, in
and around Corcoran and between
Corcoran and Bakersfield never
exceeded the ‘‘alleged’’ threshold
velocity to entrain dust and the winds
originating in Lemoore that did exceed
such threshold could not have carried
sufficient particles of PM on to
Bakersfield and Oildale. Earthjustice
concludes therefore that the timing,
wind trajectories and the basic physics
of wind movement do not support a
causal connection between the Lemoore
winds and the September 22, 2006
exceedances.
Response 23: See responses to
comments 11 and 16.
Comment 24: Earthjustice notes that
the District highlights a single data
point showing sustained winds of 15.2
mph for one hour in Alpaugh.
Earthjustice believes this is troubling
because the District is relying on data
from the California Irrigation
Management Information System
(CIMIS) monitoring network that the
T & B Systems Report says should be
used with ‘‘extreme caution.’’
Earthjustice also believes that it is
suspicious that the District puts forth
data from this source while
simultaneously providing almost none
of the data it collects from its own
meteorological sensors which are
collocated with the monitors that record
PM–10 concentrations.
Response 24: Earthjustice quotes from
the T & B Systems Report without
providing the context of the warning to
use the data with ‘‘extreme caution.’’ In
its report, T & B Systems state:
CIMIS—This data set should be used with
extreme caution. Two significant issues
regarding the CIMIS data were noted. First,
the fact that wind measurements are made at
2 meters instead of 10 meters appears to
result in the reported wind speeds decreasing
by about 30 percent relative to those made at
10 meters. This can be corrected, for the most
part, by using the standard power law
adjustment. Second, the results brought
about significant questions about the
alignment of the wind direction system, with
possible misalignments as much as 30°
noted. This potential problem was noted at
a significant number of sites investigated.
The QA program for the CIMIS network is
not known.
‘‘T & B Systems Contribution to
CRPAQS Initial Data Analysis of Field
Program Measurements, Final Report
Contract 2002–06,’’ Technical &
rfrederick on PROD1PC67 with RULES
Business Systems, Inc., November 9,
2004 at 3.
The issue of the height of the
measurements taken at CIMIS’
meteorological stations was addressed
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
by the State in its documentation.28
Winds measured at two meters above
ground level (AGL) are generally lower
than those measured at the standard 10
meters.
Regarding the alignment of the wind
direction system, there were many other
meteorological stations that provided
data on wind direction and these
showed that the winds were
predominantly from the north and
northwest on September 22, 2006.
Any uncertainty regarding the quality
assurance for the CIMIS data would
carry more weight if we were relying
solely on the CIMIS data. Most of the
meteorological data included in the
State’s documentation 29 as well as the
additional data obtained by EPA 30 and
used to evaluate this exceptional event
demonstration were from the District’s
meteorological stations and National
Weather Service meteorological
networks. Since the District does not
operate any monitoring stations between
Corcoran and Bakersfield, it did not
have any District-collected
meteorological data for this region.
Comment 25: Earthjustice believes
that the District did little more than a
blind search for the areas of the SJV that
experienced winds that exceeded the
‘‘alleged’’ entrainment level and then
concluded that pollution on September
22, 2006 must have originated from that
area.
Response 25: EPA believes that the
State and EPA conducted a thorough
evaluation of the possible cause of the
September 22, 2006 exceedances and
considered potential sources, conditions
and control measures at the time of the
exceedances. We discuss in additional
detail in our response to comment 16
the fact that a number of locations in the
central SJV besides Lemoore
experienced high winds on that day.
After a consideration of the most likely
cause of the exceedances and after
evaluating all the circumstances, the
State concluded that the unusually high
winds in the Lemoore area caused the
exceedances in Corcoran and
Bakersfield on September 22, 2006. The
State then established in its
documentation the causal connection
between the winds in the Lemoore area
28 ‘‘Addendum, Natural Event Documentation,
Corcoran, Oildale and Bakersfield, California,
September 22, 2006,’’ May 23, 2007 at 13.
29 ‘‘Natural Event Documentation, Corcoran,
Oildale and Bakersfield, California, September 22,
2006,’’ San Joaquin Valley Unified Air Pollution
Control District, April 20, 2007; ‘‘Addendum,
Natural Event Documentation, Corcoran, Oildale
and Bakersfield, California, September 22, 2006,’’
San Joaquin Valley Unified Air Pollution Control
District, May 23, 2007.
30 Mesowest historical meteorological data,
Mesowest, http://www.met.utah.edu/mesowest/.
PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
and the exceedances at Corcoran and
Bakersfield.
Comment 26: Earthjustice asserts that
neither the District nor EPA offers any
basis for the statement in the proposed
rule at 72 FR 49051 that ‘‘wind speeds
[in Corcoran], though not sufficient to
erode dust, were sufficient to keep
entrained and transported dust from the
high winds at Lemoore suspended for
the period during which the
exceedances occurred.’’ Earthjustice
further asserts that because winds 10
miles southeast of Lemoore at the SRR
never exceeded the entrainment
threshold and no other relevant location
outside of the area northwest of
Lemoore experienced erosive winds,
there is very little basis for the
conclusion that a clear causal
relationship exists between dust
entrained in Lemoore and violations of
the standard in Corcoran, Oildale and
Bakersfield.
Response 26: See responses to
comments 10, 11, 15 and 16.
Comment 27: Earthjustice asserts that
EPA fails to show that the exceedances
at Corcoran, Bakersfield and Oildale
were outside normal historical
concentrations. Earthjustice claims that
dust-intensive agricultural activities
occur in the fall and that none of the
September 22, 2006 exceedances are
significantly beyond the normal
fluctuating range of air quality
concentrations in the SJV. Earthjustice
presents a chart that it says
demonstrates that the September 22,
2006 readings are within the historical
range of PM–10 concentrations observed
over the past 15 years during the fall
season.
Response 27: See our response to
comment 12 above.
Comment 28: Earthjustice states that
EPA suggests in the Exceptional Events
Rule that a contemporary comparison of
all seasonally-adjusted data is
appropriate for determining historical
frequency of the measurements in
question. However, Earthjustice says,
because fall is the season with the
highest PM–10 concentrations, the
comparison is most appropriately made
by looking at historical data from
September through November.
Earthjustice claims that because the
District’s documentation limits its
comparison to September measurements
over a 7 year period, the result is a
‘‘typical value’’ based only on the
‘‘relatively good days monitored.’’
Response 28: See our response to
comment 12 above.
Comment 29: Earthjustice maintains
that EPA asserts that because the
September 22, 2006 measurements were
higher than what the District claims is
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the ‘‘typical value’’ for the month of
September, these violations must have
been caused by an exceptional event.
Earthjustice claims that with this
argument EPA is saying that any PM–10
exceedance should be ignored as
exceptional which is an absurd
assumption that would render the
NAAQS meaningless.
Response 29: EPA did not decide to
exclude the data from September 22,
2006 from its attainment finding simply
because the data were outside of the
typical range of values normally seen in
these areas. The EER has a number of
criteria that need to be met in order for
us to concur with a State’s request to
exclude data from consideration,
including a demonstration that the
event affected air quality, a causal
connection between the event and the
exceedance value recorded, an analysis
demonstrating that the recorded
exceedance was outside the normal
fluctuation of the data, and a
demonstration that ‘‘but for’’ the event
the exceedance would not have
occurred. EPA evaluates how the State
meets all of these criteria, in addition to
the procedural requirements of the EER
and determines, based on the weight of
the totality of the evidence presented,
whether to concur with the State’s
request. In this case, EPA believes that
the State has met the ‘‘weight-of-
evidence’’ standard and has
demonstrated that the cause of the
exceedances on September 22, 2006 was
a high wind exceptional event. See also
our response to comment 12.
Comment 30: Earthjustice states that if
EPA had compared the September 22,
2006 data to data from other days on
which exceedances occurred, it would
have found that the September 22, 2006
readings are typical of bad air days in
the fall in the SJV and therefore would
not have been able to dismiss these
violations as ‘‘in excess of normal
fluctuations.’’
Response 30: See response to
comment 12.
Comment 31: Earthjustice states that it
reviewed EPA’s AQS reports of
monitoring data from the past ten years
and found that in Corcoran, 50 percent
of all FRM readings showing elevated
levels of PM–10 occur in September and
October and that 95 percent occur in the
period from September to January.
Earthjustice states that although the
numbers are lower in Bakersfield and
Oildale, with 31 percent and 29 percent
of elevated PM–10 readings,
rfrederick on PROD1PC67 with RULES
respectively, occurring in September
and October, these numbers do not
paint the picture of exceptionality the
District and EPA claim. Instead,
Earthjustice declares, these numbers
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
confirm that the concentrations
recorded on September 22, 2006 were
within the normal historical range of
PM–10 concentrations experienced in
the central and southern SJV during the
fall PM season when concentrations are
historically at their highest.
Response 31: As discussed in our
response to comment 12, EPA analyzed
data from these sites and determined
that the concentrations recorded on
September 22 and October 25, 2006
were well outside the normal historical
fluctuation of data normally recorded at
these sites. In its comment, Earthjustice
analyzes what it states are ‘‘elevated
levels’’ of PM–10 concentrations that
were recorded at the Corcoran, Oildale,
and Bakersfield-Golden State Highway
sites. Earthjustice asserts that an
‘‘elevated level’’ is ‘‘defined by EPA’’ as
90 µg/m3 or greater.31 This is not the
case. For the source of its definition,
Earthjustice cites a Federal Register
notice in which EPA proposed to
approve a PM–10 maintenance plan for
Wallula, Washington. In that proposed
rule the 90 µg/m3 or greater was a figure
employed by the Washington State
Department of Ecology for use in
modeling a PM–10 maintenance
demonstration. 70 FR 38076 (July 1,
2005). EPA did not endorse or adopt
this level as a definition of what
constitutes ‘‘elevated levels’’ of PM–10
for the purposes of performing an
analysis of historical fluctuations for the
EER, and Earthjustice’s evaluation of
‘‘elevated levels’’ at the SJV monitoring
sites is not based on an EPA definition
of what constitutes ‘‘elevated levels’’ for
this purpose.
Comment 32: Earthjustice claims that
the ‘‘but for’’ test requires a showing
that without the winds scouring the
soils near Lemoore, the monitors in
Corcoran, Bakersfield, and Oildale
would not have recorded violations of
the PM–10 standard and that such a
showing cannot be made. Specifically,
Earthjustice asserts that the monitor in
Corcoran was violating the PM–10
standard on September 22, 2006 before
the winds in Lemoore even picked up.
Earthjustice states that Table 3 of the
District’s April 20, 2007 documentation
shows that the continuous monitor in
Corcoran was recording concentrations
in excess of 150 µg/m3 starting at 6 a.m.
Earthjustice further maintains that Jan
Null in his declaration states that there
is no way the winds in Lemoore could
transport entrained dust instantaneously
from Lemoore to Corcoran.
Response 32: We address these issues
in our responses to comments 10, 11, 16
and 21. In our proposed rule we also
31 EC at 6, footnote 16.
PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14707
discussed how the State met the ‘‘but
for’’ criteria. 72 FR at 49053.
Comment 33: Earthjustice further
asserts that the winds in Corcoran never
even got above 11 miles per hour, so
local wind entrainment of particulate
matter is not a factor. Earthjustice
concludes that activities in and around
Corcoran must have been responsible
for the high PM–10 concentrations on
September 22, 2006, not winds from
Lemoore.
Response 33: We addressed the lower
wind speed issue in Corcoran in our
proposed rule at 72 FR 49052 and also
in our responses to comments 10 and
15. As we discussed in the proposed
rule, the lower wind speeds in Corcoran
do not preclude the transport of dust
from the areas northwest of Corcoran.
The wind data from September 22, 2006
show high winds in the area centered
around Lemoore. It was this area
northwest of Corcoran that contributed
PM–10 to the air parcel that impacted
the monitors at Corcoran and
Bakersfield. While any sources in the
local area represented by the Corcoran
monitor may have contributed some
PM–10 to the total 24-hour average, it
was the wind-generated dust from the
area of Lemoore that contributed enough
PM–10 to cause the monitor to record an
exceedance of the 24-hour PM–10
NAAQS.
Given the evaluation of all
information and circumstances
surrounding the exceedance at the
Corcoran monitor on September 22,
2006, the weight of evidence supports
the conclusion that the windblown dust
from the area of Lemoore rather than
contributions from sources in the area
represented by the Corcoran PM–10
monitor were the ‘‘but for’’ cause of the
exceedance.
Comment 34: Earthjustice argues that,
even if 6 hours worth of readings from
the Corcoran continuous monitor were
removed starting at 11 a.m., in order to
account for the 6 hours during which
winds in Lemoore exceeded the alleged
threshold velocity, there is still a
violation of the PM–10 standard.
Therefore, Earthjustice concludes, there
is no way the District can argue and
EPA can concur that winds from
Lemoore were the cause of the violation
of the PM–10 standard in Corcoran on
September 22, 2006.
Response 34: As discussed in the
preamble to the EER, EPA’s historical
practice has been to exclude a daily
measured value in its entirety when an
exceptional event causes that value. See
72 FR at 13572. EPA is not aware of the
existence of precise and universally
applicable techniques that are
administratively and technically
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feasible and that could support partial
adjustment of air quality data. Thus, the
approach suggested by Earthjustice is
not viable and is not permitted by the
EER except in some very limited cases
not applicable here. See also response to
comments 10.
Moreover, Earthjustice suggests that
the winds from Lemoore began affecting
the Corcoran monitor at 11 a.m. In fact
the Lemoore area experienced winds
higher than the threshold wind speed
beginning at 6 a.m. PST and these winds
likely began affecting the monitor at
Corcoran between 7 and 8 a.m. PST (the
value reported for 7 a.m. PST). See
response to comment 10. When the
winds at Lemoore decreased to levels
below the threshold wind speed at
2 p.m. PST, the dust entrained in the
atmosphere most likely still continued
to impact the Corcoran monitor, though
we see a leveling off and then gradual
decrease in hourly PM–10
concentrations from that point forward.
See Table 3 above in our response to
comment 10. We further addressed this
timing question by performing our own
HYSPLIT analyses. See response to
comment 11 above. The result of our
analysis of the winds on September 22
supports the State’s demonstration that
winds originating in the area around
Lemoore starting at 6 a.m. PST could
have transported dust and impacted the
Corcoran monitor within one to two
hours. See Figures 1 and 2.
Earthjustice appears to assume that
particles are deposited as soon as winds
decrease below the threshold speed for
entrainment; in fact, PM–10 particles
remain in suspension for many hours
after being entrained and, as in the case
of Corcoran, continued to affect
concentrations recorded at the monitor
until the early evening hours of
September 22, 2006. Thus, Earthjustice
assumes that the windblown dust
started to affect the concentrations
monitored at Corcoran many hours later
than it did in fact, and that it ceased to
impact the monitor many hours before
it did in fact. Thus EPA believes that the
impact on the monitor started earlier
and ended later than Earthjustice
contends, and was thus the ‘‘but for’’
cause of the exceedance.
Comment 35: Earthjustice maintains
that there is no support for the claim
that but for the winds originating in
Lemoore, the monitors in Bakersfield
and Oildale would not have exceeded
the PM–10 standard. Earthjustice states
that Jan Null shows in Figures 1, 2 and
rfrederick on PROD1PC67 with RULES
3 in his declaration that the winds
originating in Lemoore may have
reached Corcoran at some point in the
day, but they certainly did not continue
on to Bakersfield and Oildale.
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
Earthjustice states that the trajectories of
winds out of Lemoore and Corcoran
were decidedly away from Bakersfield
and could not have carried particulate
matter to Bakersfield and Oildale to
cause the violations of the standard seen
in these locations. Earthjustice states
that Figure 4 in Jan Null’s declaration
shows that, in fact, any winds arriving
in Bakersfield by 1 p.m. were slow and
moving in a circular pattern up from the
southwest. Further, Earthjustice asserts
that, as illustrated in Table A–1 of the
District’s May Addendum to its April
20, 2007 documentation, wind speeds in
the Bakersfield area never reached
speeds capable of eroding soils.
Response 35: We have previously
addressed the issue of dust transport to
Bakersfield in our responses to
comments 10, 11, 15, 16 and 21. EPA
does not contend that the wind speeds
in Bakersfield reached the speeds
necessary to erode and entrain dust, but
rather that windblown dust from the
area beginning in Lemoore and moving
south affected the monitors in
Bakersfield.
The trajectory calculation that Jan
Null used for Bakersfield was not
illustrative of the complete
meteorological scenario. Again, he used
a single trajectory calculation starting at
zero meters height which does not
account for the third dimension of
height of the dust above ground level. In
HYSPLIT runs performed by EPA,
forward trajectory calculations within
the mixed layer starting between
Lemoore and Kettleman Hills show
transport directly to Bakersfield within
7 hours.
In addition, the circular wind pattern
or eddy near Bakersfield discussed by
Earthjustice was produced by a
HYSPLIT analysis using a backward
trajectory. However there appears to be
a discrepancy between forward
trajectories and backward trajectories
produced by the HYSPLIT model. In
source-receptor determinations, forward
trajectories are considered more
appropriate in determining precise
locations of sources because they more
accurately account for where the
weather is coming from. EPA’s forward
trajectories did not show any indication
of an eddy. The eddies that Earthjustice
states occurred around Bakersfield are
around 15 km in size for September 22,
2006. Since the EDAS meteorological
data used for the trajectories has 40 km
spacing between each grid point or
meteorological data point, it is not of
high enough resolution to accurately
represent an eddy in the 15 km size
range. There is too much uncertainty to
conclude that there is an eddy because
it is less than one grid cell spacing in
PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
dimension and would be considered a
sub-grid scale feature. Thus, EPA’s
HYSPLIT runs, using more appropriate
height levels in the atmosphere and
forward trajectories, support the
conclusion that the winds transported
dust from the Lemoore area and caused
the exceedances recorded at the
monitors in the timeframe of the
exceedances.
Comment 36: Earthjustice argues that,
in evaluating the ‘‘but for’’
demonstration, no attempt was made to
determine which of the many diverse
sources that contribute to particulate
matter concentrations in the SJV might
have been contributing to the pollution
load and in what quantities on
September 22, 2006. Earthjustice
concludes that for EPA to declare that
no ‘‘unusual activities’’ were taking
place on this day is to say that the same
dust-generating sources that have
always caused periodic violations of the
standards in the fall were again
responsible for exceedances.
Response 36: See responses to
comments 6, 12 and 14.
3. Comments Specific to October 25,
2006—Corcoran and Bakersfield
Comment 37: Earthjustice states that
the documentation for the exceedances
on October 25, 2006 is remarkably
similar to that of September 22, 2006,
and as such, suffers from the same
significant flaws. Earthjustice also states
that since the meteorology for both days
was very similar, much of its analysis
for September 22, 2006 also applies to
October 25, 2006. Earthjustice provides
a chart which it contends shows that
wind speeds in Lemoore on October 25
were very similar to wind speeds on
September 22. With respect to this
chart, Earthjustice asserts the following:
* * * there was a period of several hours
during which the alleged wind speed
threshold was exceeded in northwest
Lemoore at the Naval Air Station monitor,
though again wind speeds at the Santa Rosa
Rancheria monitor only 10 miles southeast
never reached that threshold. * * * Winds in
Corcoran never got above 11.3 miles per hour
and Bakersfield, likewise, did not exceed the
District’s alleged entrainment threshold with
maximum winds just under seven miles per
hour. * * * Further, the District can point to
no data between Lemoore and Bakersfield
that show winds capable of entraining dust,
offering instead only data from CIMIS
stations located far to the north and west that
experienced higher wind speeds on October
25, 2006. As has already been established by
Mr. Null, higher wind speeds on the west
side of the Valley along the Coastal Range are
not unusual due to the orientation of the
Sacramento and San Joaquin Valleys. * * *
Response 37: To the extent there are
similarities between Earthjustice’s
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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations 14709

analyses for September 22 and October Corcoran and Bakersfield were position and neglects to include other
25, 2006, EPA’s responses to comments sufficient to entrain dust but, like data that support the State’s
regarding September 22 are also September 22, 2006, the windblown demonstration. From the data supplied
applicable. dust generated in the Lemoore area in by the State in its documentation as
In addition, EPA notes that the wind the central SJV was the ‘‘but for’’ cause well as additional publicly available
speeds in the central SJV, as represented of the exceedances recorded in Corcoran data, it is clear that wind speeds in
by the meteorological monitoring station and Bakersfield on October 25, 2006. Lemoore, as well as throughout the
at Lemoore, on October 25 were quite Moreover, the wind speeds that central San Joaquin Valley, were either
high, reaching hourly average speeds of occurred in between Lemoore and in excess of the threshold wind speed
31 mph and gusts of up to 40 mph, and Corcoran and Bakersfield were of
for entrainment (18 mph) or of sufficient
were sustained at levels above the sufficient speed to transport the
threshold wind speed for 11 hours intensity to transport dust from the
entrained dust from Lemoore to the
(5 a.m. to 3 p.m. PST),32 as shown in affected areas. Id. Lemoore area to Corcoran and the
Table 5 above. We do not contend that Earthjustice again selectively presents southern SJV. See Table 7 below.
the wind speeds in the vicinity of meteorological data to support its own

TABLE 7.—OCTOBER 25, 2006 DAYTIME WIND SPEEDS AT METEOROLOGICAL MONITORING STATIONS IN THE CENTRAL
SAN JOAQUIN VALLEY
Hanford Kettleman Wasco
Mendota Tranquility Lemoore Alpaugh
Hour Airport Hills (hour/dir/
(hour/gust) (hour/gust) (hour/gust) (hour)
(hour/gust) (hour/gust) gust)

6 ............................................................... 12/ND 9/15 22/30 17/23 11/21 3.5 2/SW/3

7 ............................................................... 15/20 10/17 22/32 15/ND 20/28 2.9 0
8 ............................................................... 18/25 13/19 26/36 17/ND 15/27 5.6 7/NNW/15
9 ............................................................... 17/30 20/22 29/39 24/29 19/32 16.9 5/NNE/18
10 ............................................................. 22/31 17/21 31/37 20/28 25/35 16.5 9/N/22
11 ............................................................. 22/30 15/20 30/40 15/24 25/35 16.8 7/N/15
12 ............................................................. 21/28 17/20 28/38 12/21 24/45 15.6 6/N/16
13 ............................................................. 20/28 15/23 26/35 12/ND 25/34 14.8 8/N/16
14 ............................................................. 18/29 18/19 22/31 9/ND 21/35 13.2 2/NNE/10
15 ............................................................. 12/23 10/18 20/26 12/18 22/33 13.3 ND/N/12
16 ............................................................. 15/20 8/17 14/ND 8/16 15/28 12.7 3/N/7
17 ............................................................. 8/17 4/10 3/ND 8/ND 9/22 6.5 2/N/ND
18 ............................................................. 5/6 1/5 6/ND 6/ND 10/14 4.4 0
Source: Mesowest historical meteorological data, Mesowest, http://www.met.utah.edu/mesowest/.
ND—No Data available.

South of Corcoran, wind speeds therefore fails to demonstrate that the activities that were conducted on
measured at Alpaugh,33 15 miles SSE of winds in Lemoore affected air quality at October 25, 2006. Section 9.2 of the
Corcoran and 44 miles NW of all. Earthjustice states that, like the case State’s documentation lists the number
Bakersfield, were close to exceeding the for the September 22 demonstration, a of inspections and the location of
threshold wind speed and as such were claim that the wind entrained inspection activity and indicates that
sufficient to transport particulate matter significant amounts of dust requires the District was actively enforcing its
from the Lemoore area to Bakersfield as looking at more than just the wind rules on October 25, 2006. Two
discussed above and in our proposed speeds in the area. There are many newspaper accounts of the high winds
action. Furthermore, meteorological factors that EPA and the District failed that occurred on October 25, 2006
data from a station in Wasco, 40 miles to support with any reliable and provide independent verification of
SSE of Corcoran and 25 miles NW of accurate data, starting with whether meteorological conditions. This type of
Bakersfield and not part of the CIMIS there was any dust available to be documentation has been historically
network, recorded data that indicate entrained. used to support these types of
that the daytime winds, while not high Response 38: See responses to exceptional events requests. EPA’s EER
enough to erode soils, were comments 6, 14 and 18. As is the case states that the simplest demonstrations
predominantly from the north. with the September 22, 2006 could consist of newspaper accounts or
Comment 38: Earthjustice states that documentation, the State has evaluated satellite images to demonstrate that an
like the documentation for September a variety of factors and circumstances to event occurred together with daily and
22, 2006, the District’s documentation demonstrate that windblown dust seasonal average ambient concentrations
for the alleged October event also fails caused the exceedances on October 25. to demonstrate an unusually high
to analyze the actual ability of the area See ‘‘Natural Event Documentation, ambient concentration level, which is
to generate particulate matter Corcoran and Bakersfield, California, clearly indicative of an exceptional
concentrations in quantities great October 25, 2006,’’ San Joaquin Valley impact. 72 FR at 13573.
enough to cause the exceedances, fails Unified Air Pollution Control District, Comment 39: Earthjustice states that,
to provide anything more than April 23, 2007 at section 7. as explained in its comments for
rfrederick on PROD1PC67 with RULES

anecdotal evidence of activity levels and The State also provided information September 22, 2006, the generation of
compliance with dust controls, and on the inspection and compliance particulate matter from winds of the
32 As discussed in response to comment 10 above, 33 See response to comment 24.
the meteorological data for Lemoore must be
adjusted to correct for Daylight Savings Time.

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 14710 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
type experienced on October 25, 2006
could have been controlled or prevented
had reasonable controls been required of
dust-producing sources. Earthjustice
believes that the fact that the District is
trying to blame winds only slightly
above the alleged wind speed threshold,
and significantly below the velocities at
which the aforementioned controls stop
being effective, suggests that either
winds could not have entrained dust or
the reasonable measures referenced in
the proposal were not actually in place
at the time of the event.
Response 39: See responses to
comments 5, 6 and 7. The winds in the
Lemoore area on October 25 were not
‘‘slightly above’’ the wind speed
threshold but rather included sustained
high winds between 26 and 31 mph
with gusts ranging from 26 to 40 mph.
These wind speeds were clearly
sufficient to entrain and transport PM–
10.
Comment 40: Earthjustice states that
high winds entraining dust may qualify
as a natural event, but it also believes
the source of the dust is of equal
importance under the law. Earthjustice
states that EPA admits that on October
25, 2006, the wind-entrained particulate
matter originated from anthropogenic
sources such as agricultural and
industrial activities, but that under the
EER, only ‘‘an event in which human
activity plays little or no direct causal
role’’ can be considered a natural event.
Earthjustice states that Congress did not
intend for exceptional events to include
sources that are caused by human
activity. Alternatively, Earthjustice
states that the source of the dust cannot
be considered a non-recurring human
activity, as agricultural and industrial
activities are a constant source of
emissions in the Valley.
Response 40: See response to
comment 5. Also, regarding
Earthjustice’s argument that dust from
agricultural and industrial activities
cannot be considered a non-recurring
human activity because these activities
are a constant source of emissions in the
Valley, EPA does not consider (and has
not stated anywhere) that normal
agricultural and industrial activities are
‘‘non-recurring human activity’’ because
such human activities often recur on a
regular basis. By contrast, examples of
non-recurring human activities may
include major construction projects
such as highways if they meet the
criteria and requirements established in
the EER. However, a recurring natural
rfrederick on PROD1PC67 with RULES
event such as a high wind event may
entrain dust from anthropogenic
sources. The entrainment of dust from
‘‘reasonably controlled sources’’ such as
agricultural sources does not convert a
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
natural event that qualifies as a high
wind event into a recurring human
activity which appears to be the result
Earthjustice is seeking.
Comment 41: Earthjustice states that,
like the September 22, 2006
documentation, the District did not
provide the requisite amount of time for
public comment on its October 25, 2006
documentation and did not re-publish
its final documentation after radically
changing its rationale. These procedural
deficiencies alone should give EPA
pause in considering the District’s
requests to flag this data.
Response 41: See response to
comment 8.
Comment 42: Earthjustice states that
since the meteorology on October 25,
2006 is so similar to that of September
22, 2006, it is not surprising that a
causal connection cannot be established
for October 25 either. Earthjustice points
out that the Corcoran monitor began
reading concentrations above the
national standard at 6:00 am, the same
time that the winds in Lemoore, 25
miles away, began exceeding the
District’s alleged wind speed threshold
at the same time. Earthjustice believes
that it should go without saying that it
is not possible for winds in Lemoore to
transport entrained dust to Corcoran
instantaneously, which is what would
have to be the case if we are to believe
the District’s claims that those winds
caused the exceedances in Corcoran,
and that therefore, something other than
the Lemoore winds caused the initial
exceedances recorded at that monitor.
Response 42: See responses to
comments 10 and 11.
Comment 43: Earthjustice states that
even if we were to assume that the
winds carried dust from Lemoore to
Corcoran, the trajectory of those winds
does not support the conclusion that the
dust then moved down to Bakersfield.
Earthjustice cites Figure 7 in the Null
declaration which shows that winds
originating in Lemoore moved on a due-
east path toward Hanford and Corcoran
and continued on toward the Sierra
foothills. Jan Null uses HYSPLIT to
determine the source of wind parcels
arriving in Bakersfield at noon, which is
approximately when the exceedances
began, and shows that the same slow
eddy effect that occurred on September
22, 2006 was also occurring in
Bakersfield on October 25, 2006, which
means that the winds impacting
Bakersfield during the time of the
exceedances were coming in slowly
from the southwest. Figure 8 in the Null
declaration.
Response 43: As discussed in our
responses to comments 11 and 21 above,
EPA assumed a more realistic three
PO 00000 Frm 00052 Fmt 4700 Sfmt 4700
dimensional approach to using the
HYSPLIT model than did Jan Null. We
also used a small range of starting points
for our HYSPLIT runs, recognizing that
although the available Lemoore
meteorological data were from a point
located at the Lemoore Naval Air
Station, the data represent conditions
over a wider area. See footnote 11
above.
As with our analysis of the September
22, 2006 event, we initiated three
HYSPLIT runs for October 25, 2006, one
starting half way between Lemoore and
Kettleman City (about 11 miles
southwest from Lemoore), one at
Lemoore, and one about 11 miles
northeast of Lemoore. On October 25,
2006, the HYSPLIT trajectory presented
by Null in Figure 7 of his declaration
indicates that the winds starting in
Lemoore went to the east southeast.
However, EPA’s HYSPLIT runs initiated
half way between Lemoore and
Kettleman City, northwest of Corcoran,
demonstrate that the winds continued
down the SJV towards Bakersfield,
along a path just west of Corcoran. See
Figures 5 and 6 above. Between
Lemoore and Kettleman City, the winds
were in transition from heading towards
the east near Corcoran and following the
Coastal Range as happened around
Kettleman City. This caused the winds
in a portion of that transition area to go
in a direct path towards Bakersfield. See
Figure 5.
For Bakersfield, Null used a trajectory
in Figure 8 of his declaration at zero
meters height to show the same eddy
effect occurring on October 25 as on
September 22. Again, this height does
not take into account dust mixing up
into the atmosphere. In EPA’s HYSPLIT
runs, more appropriate forward
trajectories were used which showed
that dust coming from the Lemoore area
could have reached Bakersfield within
about 6 hours. See Figure 6. They also
did not show any indication of the eddy
effect near Bakersfield that Earthjustice
found with back trajectories. Id. and
response to comment 35. This supports
the conclusion that dust-laden winds
from the Lemoore area reached
Bakersfield on October 25, 2006
consistent with the impacts reflected at
the Bakersfield monitor.
Comment 44: Earthjustice states that
while the District and EPA cite wind
speeds averaging 12 miles per hour in
Alpaugh, an area 15 miles south of
Corcoran, neither agency provides a
basis for concluding that such winds
could transport and keep suspended the
plume of entrained dust that was
allegedly carried to Bakersfield, nor do
they explain how the evidence provided
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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
even suggests such transport could have
taken place.
Response 44: See responses to
comments 11, 15 and 43. EPA finds that
the documentation does establish a clear
causal relationship between the winds
in Lemoore and the exceedances in
Corcoran and Bakersfield. See ‘‘Natural
Event Documentation, Corcoran and
Bakersfield, California, October 25,
2006,’’ San Joaquin Valley Unified Air
Pollution Control District, April 23,
2007. Earthjustice neglects to consider
that the CIMIS data need to be adjusted,
as discussed in the State’s
documentation, due to the fact that
CIMIS stations collect data at 2 meters
above ground level as opposed to the
standard 10 meter height. Id. at 25. See
also response to comment 24. When this
adjustment is made, we can see that the
wind speeds at Alpaugh would have
been approximately 25 percent higher at
10 meters than at 2 meters. Winds at
nearly 17 mph were recorded from 9
a.m. to 11 a.m. PST, dropping to
between 15 mph and 13 mph between
12 p.m. and 3 p.m. PST. The lower wind
speeds recorded at stations farther
south, such as Shafter and Arvin, are
consistent with the State’s
demonstration that after the winds in
the central SJV transported particulate
matter southward, lower wind speeds in
the Bakersfield area facilitated the
settling of the particulates at the
monitoring station.
Comment 45: Earthjustice states that
while the readings from October 25,
2006 were relatively high, they were
probably not beyond the normal
historical fluctuations experienced in
the Valley in late October. Earthjustice
also states that fall is when the Valley’s
PM–10 concentrations are at their
highest and also the peak season for
many dusty crops in the Valley.
Response 45: See our responses to
comment 7 and 12 above.
Comment 46: Earthjustice states that
EPA’s ‘‘but for’’ analysis for the October
25, 2006 event is based entirely on
speculation and conjecture and that
EPA cannot say for sure what activities
were taking place in the areas of
Corcoran or Bakersfield and cannot say
for sure that without the alleged high
winds in Lemoore the monitors in
Corcoran and Bakersfield would not
have exceeded the standard.
Response 46: See responses to
comments 6 and 7 and EPA’s ‘‘but for’’
analysis in our proposed rule at 72 FR
49056–49057. EPA’s conclusion is not
rfrederick on PROD1PC67 with RULES
based on speculation and conjecture but
rather on the weight of evidence
presented.
Comment 47: Earthjustice states that
since the HYSPLIT analyses provided
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
both by the District and by
meteorologist Jan Null contradict the
claim that the winds from Lemoore had
a sufficient speed or trajectory to impact
Corcoran and Bakersfield, and because
the Corcoran and Bakersfield monitors
were already measuring exceedances of
the PM–10 standard before the winds
from Lemoore could have arrived, EPA
cannot conclude that the District has
established that ‘‘but for’’ the winds in
Lemoore, the exceedances would not
have occurred.
Response 47: See responses to
comments 10, 11, 21, 43 and 44.
B. Other Comments
Comment 48: A commenter notes that
the concept of exceptional events for air
quality purposes is ‘‘a bad idea’’ because
they provide a loophole to gut the intent
of the original regulation. The
commenter expresses concern that
discarding data related to exceptional
events would substantially weaken the
regulation designed to protect the health
of residents in an area. In the particular
instance of the SJV, the commenter
notes that the exceptional events were
high winds and construction activity.
According to the commenter, these
events should not be used to justify poor
air quality because high winds are a
natural occurrence and construction
activity occurs repeatedly. The
commenter expresses concern that
exceptional events not be used as
‘‘additional excuses to rationalize bad
air on certain days.’’
Response 48: Congress amended
section 319 of the CAA and required
EPA to establish regulations governing
the review and handling of air quality
monitoring data influenced by
exceptional events. In amending section
319, Congress indicated that states
should not have to prepare and
implement regulatory strategies
designed to remedy poor air quality
when their air quality is affected by
events beyond their reasonable control.
To accomplish this goal, Section 319, as
amended, defined an exceptional event
and required EPA to set certain
minimum substantive and procedural
requirements before data could be
excluded as due to an exceptional event.
In response, as described below, EPA
proposed regulations for exceptional
events in March 2006 and sought public
comments on its proposal. See 71 FR
12592 (March, 10, 2006). In March 2007,
after considering all comments received,
EPA published its final rule on
exceptional events which became
effective on May 21, 2007. 72 FR 13560.
During the exceptional events
rulemaking process, EPA took
comments on the definition of
PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14711
exceptional events, the substantive and
procedural requirements for an event to
qualify as an exceptional event and
appropriate mitigation measures in
these circumstances. In this rulemaking
on air quality in the SJV, EPA is neither
seeking nor considering comments on
the concept of exceptional events,
which activities would constitute
exceptional events, and/or whether air
quality data may be excluded due to
such events. EPA has already addressed
these issues in its EER. Comments about
the concept of exceptional events and
whether such events should be
considered in air quality determinations
have been decided in the exceptional
events rulemaking process and thus are
outside the scope of this rulemaking.
The commenter also notes that as a
general matter high winds should not be
considered an exceptional event
because they are natural occurrences.
EPA has discussed high wind events
extensively in the preambles to both the
proposed and the final rules on
exceptional events. The EER indicates
the circumstances under which high
winds can qualify for treatment as
exceptional events. Again, these general
issues were decided in the EER and EPA
did not reopen comment on that general
issue in this SJV rulemaking. The
commenter does not provide data
relevant to whether the high winds in
this instance meet the provisions of the
EER, the issue under consideration in
this rulemaking action.
The commenter asserts that
‘‘construction is always occurring’’ and
therefore data related to these events
should not be excluded. Not all
construction activity qualifies as an
exceptional event. A construction
activity, like other exceptional events
must meet the definitional, substantive
and procedural requirements specified
in the EER. For example, for any
construction activity to be considered
an exceptional event, it must meet the
definition of an exceptional event,
including for anthropogenic events such
as construction, that it is an event that
is unlikely to recur at that location.
Thus, by definition, construction
activity that is ‘‘always occurring’’ at a
particular location is not an exceptional
event under the rule.
Comment 49: The commenter states
that he is unfamiliar with details of the
SJV case but wishes to comment on the
concept of exceptional events and
expressed his view that such events
should not be considered in air quality
determinations. The commenter
believes that there are a wide variety of
loopholes such as permitting rounding
down of numbers, exclusion of three
worst days and using three year
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averages for final attainment which
‘‘degrade the rigor of the standard.’’
According to the commenter, excluding
air quality data affected by exceptional
events further softens the initial
regulation. In the SJV case, the
commenter questions why the
construction activity was not limited to
periods when the atmosphere could
‘‘handle the load.’’ In addition, the
commenter discusses the construction
of an asphalt plant in a local community
and notes that during the construction
of such a plant, officials sought to
exclude data on certain days because
they attributed the poor air quality to
interstate transport. The commenter also
refers to the treatment of fires in his
area.
Response 49: With respect to that
portion of the comment concerning the
concept of exceptional events, see
response to comment 48. In response to
the commenter’s question about why the
construction activity was not limited to
periods when the atmosphere could
handle the load, EPA notes that air
quality ‘‘load’’ is not an issue for the
SRR area where construction
contributed to the exceptional event.
There have been no exceedances or air
quality issues in the SRR area either
before or after the construction activity.
As explained in the proposed rule, the
monitor in the SRR was affected by the
construction activity because it was in
such close proximity to the construction
activity (25–100 feet). 72 FR at 49062.
The monitor has not recorded any
exceedances since the construction
activity at the parking lot was
completed. The comments on the
construction of the asphalt plant and the
fires do not relate to issues in the SJV
area and thus are outside the scope of
this rulemaking.
C. List of EPA Figures in Docket
• Figure 1. ‘‘Forward Trajectories at
10, 100, & 250 meters, Lemoore Area to
Corcoran, September 22, 2006, 6 a.m. to
8 a.m. PST,’’ March 6, 2008.
• Figure 2. ‘‘Forward Trajectories at
250 meters, Lemoore to Corcoran and
Bakersfield, September 22, 2006, 6 a.m.
to 1 p.m. PST,’’ March 6, 2008.
• Figure 3. ‘‘Forward Trajectories at
10, 100, & 250 meters, Lemoore Area to
Bakersfield, September 22, 2006, 6 a.m.
to 1 p.m. PST,’’ March 6, 2008.
• Figure 4. ‘‘Forward Trajectories at
10, 100, & 250 meters, Lemoore Area to
Corcoran, October 25, 2006, 5 a.m. to 7
rfrederick on PROD1PC67 with RULES
a.m. PST,’’ March 6, 2008.
• Figure 5. ‘‘Forward Trajectories at
250 meters, Lemoore to Corcoran to
Bakersfield, October 25, 2006, 5 a.m. to
11 a.m. PST,’’ March 6, 2008.
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
• Figure 6. ‘‘Forward Trajectories at
10, 100, & 250 meters, Lemoore Area to
Bakersfield, October 25, 2006, 5 a.m. to
11 a.m. PST,’’ March 6, 2008.
• Figure 7. ‘‘Annual Peak Day PM10
Concentrations at Corcoran,’’ March 6,
2008.
• Figure 8. ‘‘Annual Peak Day PM10
Concentrations at Bakersfield,’’ March 6,
2008.
• Figure 9. ‘‘Annual Peak Day PM10
Concentrations at Oildale,’’ March 6,
2008.
• Figure 10. ‘‘Annual Peak Fall Day
PM10 Concentrations at Corcoran
(September, October, November Data
Only),’’ March 6, 2008.
• Figure 11. ‘‘Annual Peak Fall Day
PM10 Concentrations at Bakersfield
(September, October, November Data
Only),’’ March 6, 2008.
• Figure 12. ‘‘Annual Peak Fall Day
PM10 Concentrations at Oildale
(September, October, November Data
Only),’’ March 6, 2008.
III. Final Action
For the reasons set forth in detail in
EPA’s proposed rule and in today’s final
rule, including the responses to
comments, EPA is concurring with the
State’s and the Santa Rosa Rancheria
Tribe’s requests to flag exceedances
occurring in 2006 as being caused by
exceptional events. (i.e., high winds and
construction activity in very close
proximity to the monitor, respectively).
In addition, as set forth in its proposed
rule, EPA is finding that the monitor at
the Santa Rosa Rancheria was not
properly sited for purposes of collecting
data for comparison to the NAAQS
during the period that exceedances were
monitored in 2006. EPA is thus
concluding that the exceedances that are
the subject of these requests should be
excluded from use in determining
whether the SJV has attained the PM–
10 NAAQS. EPA is finalizing its
proposal to affirm the determination of
attainment for the SJV, based on quality-
assured data through December, 2006.34
For the reasons set forth in its
proposed rule and in this final rule, EPA
is denying the December 29, 2006
petition for reconsideration and the
March 21, 2007 petition for withdrawal
of EPA’s 2006 determination of
attainment filed by Earthjustice on
behalf of the Sierra Club, Latino Issues
Forum, and others.
34 The District has flagged exceedances occurring
on July 4, 2007 and January 4, 2008 as being caused
by exceptional events. We intend to address these
exceedances in the future.
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IV. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget. For
this reason, this action is also not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action merely makes a
determination based on air quality data,
and imposes no additional
requirements. Accordingly, the
Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this
rule does not impose any additional
enforceable duty, it does not contain
any unfunded mandate or significantly
or uniquely affect small governments, as
described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4).
Executive Order 13175 (65 FR 67249,
November 9, 2000) requires EPA to
develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ As discussed in our
proposed rule, several Indian tribes
have reservations located within the
boundaries of the SJV. EPA is aware of
only one tribe in the SJV that operates
a PM–10 monitor, the Santa Rosa
Rancheria. Prior to and since the
proposed rule, EPA has consulted with
representatives of the Santa Rosa
Rancheria Tribe on the data recorded by
its monitor, and the flagging of the data,
and will continue to work with the
Tribe, as provided for in Executive
Order 13175. Accordingly, EPA has
addressed Executive Order 13175 to the
extent that it applies to this action. This
action also does not have Federalism
implications because it does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
makes a determination based on air
quality data and does not alter the
relationship or the distribution of power
and responsibilities established in the
Clean Air Act. Executive Order 12898
establishes a Federal policy for
incorporating environmental justice into
Federal agency actions by directing
agencies to identify and address, as
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 Federal Register / Vol. 73, No. 54 / Wednesday, March 19, 2008 / Rules and Regulations
appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority and
low-income populations. Today’s action
involves determinations based on air
quality considerations and affirms that
the SJV attained the PM–10 NAAQS. It
will not have disproportionately high
and adverse effects on any communities
in the area, including minority and low-
income communities.
This rule also is not subject to
Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant. The
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply because it would
be inconsistent with applicable law for
EPA, when determining the attainment
status of an area, to use voluntary
consensus standards in place of
promulgated air quality standards and
monitoring procedures that otherwise
satisfy the provisions of the Clean Air.
This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5
U.S.C. section 801 et seq., as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. EPA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. section 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by May 19, 2008.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this rule for the
purposes of judicial review nor does it
rfrederick on PROD1PC67 with RULES
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
VerDate Aug<31>2005 15:13 Mar 18, 2008 Jkt 214001
enforce its requirements. (See section
307(b)(2).)
List of Subjects
40 CFR Parts 52
Environmental protection, Air
pollution control, Incorporation by
reference, Particulate matter, Reporting
and recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated March 7, 2008.
Wayne Nastri,
Regional Administrator, Region 9.
[FR Doc. E8–5188 Filed 3–18–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2007–0876; FRL–8344–1]
Spinetoram; Pesticide Tolerance;
Technical Correction
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule; technical correction.
SUMMARY: EPA issued a final rule in the
Federal Register of October 10, 2007,
concerning the establishment of a
tolerance for the combined residues of
the insecticide spinetoram. This
document is being issued to correct a
technical error, specifically, the
omission of the complete tolerance
expression under Unit V. and in the
regulatory text section of the final rule.
DATES: This final rule is effective March
19, 2008.
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2007–0876. To access the
electronic docket, go to http://
www.regulations.gov, select ‘‘Advanced
Search,’’ then ‘‘Docket Search.’’ Insert
the docket ID number where indicated
and select the ‘‘Submit’’ button. Follow
the instructions on the regulations.gov
website to view the docket index or
access available documents. All
documents in the docket are listed in
the docket index available in
regulations.gov. Although listed in the
index, some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\19MRR1.SGM
14713
available only in hard copy form.
Publicly available docket materials are
available either in the electronic docket
at http://www.regulations.gov, or, if only
available in hard copy, at the Office of
Pesticide Programs (OPP) Regulatory
Public Docket in Rm. S–4400, One
Potomac Yard (South Bldg.), 2777 S.
Crystal Dr., Arlington, VA. The hours of
operation of this Docket Facility are
from 8:30 a.m. to 4 p.m., Monday
through Friday, excluding legal
holidays. The Docket Facility telephone
number is (703) 305–5805.
FOR FURTHER INFORMATION CONTACT:
Bonaventure Akinlosotu, Registration
Division (7505P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460–0001; telephone
number: (703) 605–0653; e-mail address:
akinlosotu.bonaventure@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
The Agency included in the final rule
a list of those who may be potentially
affected by this action. If you have
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Access Electronic Copies
of this Document and Other Related
Information?
In addition to using regulations.gov,
you may access this Federal Register
document electronically through the
EPA Internet under the ‘‘Federal
Register’’ listings at http://
www.epa.gov/fedrgstr.
II. What Does this Correction Do?
The final rule, identified as FR Doc.
E7–19947 that published in the Federal
Register of October 10, 2007 (72 FR
57492) (FRL–8149–9) is corrected to fix
a technical error, specifically, the
omission of the complete tolerance
expression for the combined residues of
the insecticide spinetoram under Unit
V. (page 57498, second column) and in
the regulatory text section (page 57499,
first column) of the final rule.
Unit V. Conclusion, on page 57498,
second column, is corrected to read as
follows:
‘‘Therefore, the tolerance is established for
the combined residues of the insecticide
spinetoram, expressed as a combination of
XDE-175-J: 1-H-as-indaceno[3,2-
d]oxacyclododecin-7,15-dione, 2-[(6-deoxy-3-
O-ethyl-2,4-di-O-methyl-a-L-
mannopyranosyl)oxy]-13-[[(2R,5S,6R)-5-
(dimethylamino)tetrahydro-6-methyl-2H-
pyran-2-yl]oxy]-9-ethyl-2,3,3a,4,5,5a,5b,
19MRR1